O'Mulcahy v. Holley

• Decision Date: 16 May 1881
• Citation: 28 Minn. 31
• Parties: WILLIAM O'MULCAHY <I>vs.</I> HENRY W. HOLLEY and another, Intervenors.
• Court: Minnesota Supreme Court

28 Minn. 31

WILLIAM O'MULCAHY vs. HENRY W. HOLLEY and another, Intervenors.

Supreme Court of Minnesota.

May 16, 1881.

This action was brought in the district court for Olmsted county, to foreclose a mortgage executed by defendant Knapp to one Eddy, and by the latter assigned to plaintiff. The intervenors filed their complaint, setting up title to the mortgage, and to the note secured thereby, through a prior assignment to themselves. The action was tried by Mitchell, J., who found that the note and mortgage to Eddy were executed and delivered, on September 27, 1856; that on December 15, 1856, Eddy sold, transferred and delivered them, for a valuable consideration, to the intervenors, who ever since have had possession of them; and that, at the same time, Eddy executed to the intervenors a warranty deed of the mortgaged premises, which was recorded in 1858. On May 18, 1878, Eddy, for a valuable consideration, made an assignment to plaintiff of the same note and mortgage, with a covenant that he had good right and lawful authority to sell the same. In 1876, in reply to a question by plaintiff, the intervenors informed him that they had no interest in the land. In March, 1878, the intervenors, for a nominal consideration, gave plaintiff a quitclaim deed of the premises, and, during the negotiations for this deed, plaintiff informed the intervenors that Eddy had agreed to assign the note and mortgage to him. The intervenors did not at that time assert any claim to the note and mortgage, having entirely forgotten their ownership. Plaintiff also was ignorant of their interest, and the quitclaim deed was given to remove from the title the cloud caused by Eddy's conveyance to the intervenors, who had forgotten that it had any connection with the transfer of the note and mortgage to them.

On these findings, judgment was ordered and entered for the intervenors, and plaintiff appealed.

H. C. Butler and Geo. N. Baxter, for appellant.

Jones & Gove, for respondents.

GILFILLAN, C. J.^*

The facts found by the court below — and there is no complaint made here of the findings of fact — do not sustain plaintiff's claim that the intervenors Holley and Brown are estopped from asserting their title to the note and mortgage which are the subject of plaintiff's action; for although they were silent as to their ownership, when, perhaps, they ought to have given plaintiff notice of it, yet it is not found that such silence influenced in any manner his conduct, nor that,...