New v. Wheaton

• Decision Date: 09 March 1878
• Parties: PATRICK NEW and Wife <I>vs.</I> JOHN WHEATON, impleaded, etc.
• Court: Minnesota Supreme Court

24 Minn. 406

PATRICK NEW and Wife vs. JOHN WHEATON, impleaded, etc.

Supreme Court of Minnesota.

March 9, 1878.

This was an action to set aside or declare void the title of the defendant Wheaton to a certain lot of land in Ramsey county. The cause was tried in the district court for said county by Brill, J., without a jury, and judgment was rendered for defendants for costs and disbursements. The defendant Wheaton appealed from this judgment.

H. J. Horn, for appellant.

Davis, O'Brien & Wilson for respondents.

BERRY, J.

The facts of this case as found by the court below are these: On January 5, 1874, the plaintiff Patrick New, being the owner of certain land, executed, together with the plaintiff Julia New, his wife, a deed conveying the same in fee simple to defendant Farrell, which was duly recorded on the twenty-fourth day of the same month. The deed was executed in pursuance of an agreement between the plaintiffs and Farrell, to the effect that the land should be conveyed to the latter to secure him for liability incurred by him by becoming surety on a bail-bond for a son of the plaintiffs who was in custody upon a criminal charge.

On January 27, 1874, Farrell applied to defendant Wheaton for a loan, offering the land aforesaid as security, and representing that he was the owner of it. Thereupon Wheaton lent him (Farrell) $1,000 upon his note and a mortgage upon the land, executed by him as security. Wheaton relied upon Farrell's title as it appeared upon his deed, and upon Farrell's said representation.

At the time of loaning the money and taking the mortgage Wheaton had "actual notice that said real estate was in the possession of said plaintiffs, and was occupied by them." It does not appear that defendant Farrell's liability on the bail-bond has terminated.

As conclusions of law it is found: — First, that the conveyance from plaintiffs to Farrell is in effect a mortgage; second, that the possession of the real estate by plaintiffs, at the time the mortgage from Farrell to Wheaton was given, was notice to Wheaton of plaintiffs' rights as respected the same; and, third, that it not appearing that the liability of Farrell upon the bond is terminated, plaintiffs are not entitled to judgment in this action.

Judgment was rendered for defendants for costs and disbursements. The defendant Wheaton appeals to this court.

As to the correctness of the first conclusion of law upon the facts found there is no controversy.

The principal attack of the appellant in this court is made upon the second conclusion of law. This...