Oertel v. Pierce
| Decision Date | 22 December 1911 |
| Docket Number | Nos. 17,284 - (159).,s. 17,284 - (159). |
| Citation | 116 Minn. 266 |
| Parties | BERTHA S. M. OERTEL v. J. HOMER PIERCE.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
plaintiff; alleged said summons was personally served upon plaintiff, denied that plaintiff ever authorized defendant to collect the rents of the Omaha Hotel; alleged that defendant had accounted to George C. Power for all sums collected from that building, and that the action was barred by the statute of limitations. The trial was before Brill, J., who made findings and conclusions of law as stated in the opinion. From an order denying defendant's motion to vacate the judgment entered pursuant to the findings, he appealed. Affirmed.
Stringer & Seymour, for appellant.
James A. Kellogg and Morphy, Ewing & Bradford, for respondent.
Action for an accounting of the rents and profits of certain property alleged to belong to plaintiff, and for other relief. After a trial before the court without a jury, findings of fact and conclusions of law were duly made, and judgment ordered for plaintiff as prayed for in the complaint. Defendant appealed from an order denying a new trial.
The findings of the court disclose the following facts:
Plaintiff was, on June 20, 1889, the owner in fee simple of the real estate and premises involved in the action. On that day, her husband joining therein, plaintiff executed and delivered to defendant a mortgage upon the property to secure the payment of the sum of $1,800 then due from her to defendant. Default was subsequently made in the payment of the debt, and defendant duly foreclosed the mortgage; the premises being sold thereunder on April 5, 1895, and defendant being the purchaser at the sale. A certificate of foreclosure in due form was issued by the sheriff, and subsequently recorded in the office of the register of deeds. The property at the sale brought the sum of $1,800, leaving as a balance due upon the mortgage debt the sum of $220.24.
Plaintiff was desirous of preserving her rights in the property, and sought the aid and assistance of George C. Power, who held a second mortgage thereon for the sum of $1,400. On April 4, 1896, the day preceding the expiration of redemption on the foreclosure at the instance and request of plaintiff, and for her benefit, Power entered into a written contract with defendant, acting through one Clark, his agent, but who was not authorized in writing to make a contract for the sale of the property of his principal, whereby defendant agreed to sell to Power the said real estate, upon the payment of the full amount due upon plaintiff's foreclosed mortgage, which was then agreed upon as $2,422.89; the payment to be made within three years from the date of the contract. The contract contained numerous provisions not necessary here to mention, and by its language created an obligation on the part of the defendant to sell the property, and a mere option on the part of Power to buy the same.
The court further found that at the time the contract was prepared and executed it was verbally understood that it was made in the interests of plaintiff, and that Power would make no payments thereunder; that the same should be made by plaintiff, and whatever rights Power acquired in the premises should inure to the benefit of plaintiff, the contract being held by him as security for the payment of his second mortgage. At the time the contract was so entered into plaintiff paid to Power the sum of $422.89, to be applied upon the mortgage debt, and Power in turn paid the same to defendant. Plaintiff thereafter was permitted by defendant to remain in possession of the property, and she collected and received the rent from tenants until October, 1896, paying of such proceeds the sum of $66 to Power, who paid the same over to defendant. Other than this sum, and the amount paid when the contract was entered into, namely, $422.89, no part of the debt has been paid, except as received by defendant from rents and profits as now to be stated, though on May 29, 1896, plaintiff paid the taxes upon the property.
During all the times stated plaintiff was also the owner of a certain building standing upon land owned by the Chicago, St. Paul, Minneapolis & Omaha Railway Company, in the city of St. Paul, known as the Omaha Hotel. In October, 1896, plaintiff being about to remove from the state, it was agreed between plaintiff, Power, and defendant that defendant should take possession of all said property, including the Omaha Hotel, which was not covered by the mortgage, and collect and receive the rents accruing therefrom, crediting the same, less expenses of management of the property, upon the indebtedness represented by the foreclosed mortgage. Pursuant to this agreement, which does not appear to have been in writing, defendant took possession of said properties, and since then has had the care thereof, and has received the rents and profits therefrom, but has not applied the same to the payment of plaintiff's said debt to him, and he has refused to do so.
Plaintiff brought this action to compel an accounting of the rents and profits so received, and to redeem from the mortgage. As bearing upon the question to what extent or for what time plaintiff is entitled to an accounting respecting the rents received by him from the Omaha Hotel property, as well as the question as to the ownership thereof, a further statement of facts in reference thereto is necessary.
As already stated, the foreclosure of the mortgage left a deficiency due upon the debt secured, and on March 29, 1896, defendant brought an action against plaintiff to recover the same. The summons therein, as appears by the sheriff's return, was personally served upon plaintiff, defendant in that action; but she made no appearance, and on August 4, 1896, default judgment was rendered against her for the sum of $341.21. On April 30, 1902, nearly six years after the entry of the judgment, an execution was issued thereon, under which the sheriff levied upon and sold the Omaha hotel property; defendant being the purchaser at the sale, and paying therefor the sum of $100. The judgment and proceedings under the execution appear upon their face in all things regular, and vested in defendant, prima facie, title to that property from the expiration of the period of redemption. But plaintiff alleged in her complaint in this action that she had no notice of that action, that the summons therein was never in fact served upon her, and she demanded that the judgment be declared null and void for lack of jurisdiction in the court to render the same. The court found the allegations of plaintiff's complaint in this respect to be true — that the summons was not served upon her.
As conclusions of law the court found (1) that the judgment and proceedings thereunder, resulting in a sale of the Omaha Hotel property were void, because no service of the summons was made upon defendant therein; and (2) that the transaction by which defendant agreed upon payment of the mortgage indebtedness to sell and convey the property to Power, the agreement having been made in the interests and for the benefit of plaintiff, and to protect her title to the same, operated as an annulment of the foreclosure; that thereafter defendant's right in the property was that of mortgagee in possession; that an accounting should be had, and the net income received from the property by defendant applied in the discharge of the mortgage debt; and that plaintiff be granted the right of redemption.
Defendant on this appeal challenges certain parts of the findings of fact, and the correctness of the...
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