Niles v. Cooper
| Decision Date | 04 May 1906 |
| Docket Number | Nos. 14,775-(78).,s. 14,775-(78). |
| Parties | GEORGE H. NILES v. CHARLES A. COOPER and Another.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
George H. Niles and Lindbergh & Blanchard, for appellant.
Stewart & Brower, for respondents.
Action in ejectment to recover the possession of certain land. Defendant had a directed verdict in the court below, and plaintiff appealed from an order denying his alternative motion for judgment notwithstanding the verdict, or for a new trial.
The facts in the case are as follows: One Ellis Kling was the owner of the land in question, an eighty-acre tract situated in Benton county. On January 1, 1897, he mortgaged the same to Amelia Olson to secure the payment of $350. Thereafter he conveyed sixty acres of the land to his son, A. F. Kling, who, as part of the purchase price, by the terms of the deed of conveyance, assumed and agreed to pay the mortgage debt. On the same day Kling deeded the remainder of the land, twenty acres, to his daughter, Harriett A. Kern. This transaction — the conveyance of the sixty acres to the son, twenty acres to the daughter, and the agreement of the son, as a part of the purchase price, to pay and discharge the mortgage — operated in law, as between these parties, to make the sixty acres the primary security for the mortgage debt, releasing, as between them, the twenty acres. Subsequently, A. F. Kling conveyed by warranty deed the sixty acres so conveyed to him to defendant Cooper; and Cooper, in turn, entered into an executory contract to sell and convey it to one Gerzema. Mrs. Kern died some time after the conveyance to her, leaving surviving her husband and five minor children, and, after her death, the husband, acting for himself and assuming to act as the guardian of the children, entered into an executory contract by which he agreed to convey the twenty acres to defendant Cooper. By this contract and the deed from A. F. Kling, Cooper acquired the entire eighty-acre tract. The mortgage was not paid by A. F. Kling, as by the terms of the deed he had agreed to do, and the same was foreclosed on June 14, 1902. Louis E. Wakeman became the purchaser at the foreclosure sale, and the usual sheriff's certificate was issued to him and duly recorded. Wakeman subsequently made an assignment of the sheriff's certificate to defendant Cooper, but the assignment was not recorded.
Subsequent to the foreclosure and the assignment of the sheriff's certificate, Cooper brought an action against A. F. Kling to recover the amount paid on the foreclosure of the mortgage, basing his right of action upon the covenants in the deed to Kling, by which he assumed and agreed to pay the debt. Plaintiff recovered judgment in that action, and it was subsequently paid by Kling. Before the period of redemption expired, Kern executed and delivered to plaintiff in this action a mortgage to secure a past-due indebtedness of the sum of $17.20 upon the twenty acres owned by his deceased wife and belonging to her estate. Plaintiff thereafter, as a subsequent mortgagee of a part of the premises covered by the prior or Olson mortgage, attempted to redeem from its foreclosure, and for that purpose paid to the sheriff of the county the amount necessary to effect redemption, which defendant Cooper, who then held the sheriff's certificate and had succeeded to all the rights of the mortgagee, refused to accept. Plaintiff then brought this action in ejectment, claiming that by his redemption, though his mortgage covered but the twenty acres, he acquired title to the entire eighty, and he demanded judgment for the possession of the same. This claim of course is sound, if plaintiff was a good faith redemptioner.
The facts are a little complicated, but a careful examination of the record clarifies the controversy and leads to the conclusion that the trial court properly directed a verdict for defendant, on the ground that plaintiff was not a good faith redemptioner, and therefore his attempted redemption was ineffectual. As already stated, the transaction between the senior Kling and his son and daughter, by which he conveyed the property to them, the son assuming and agreeing to pay the existing mortgage, made the...
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