Philips v. Mo

• Decision Date: 15 January 1904
• Docket Number: 13,730 - (156)
• Citation: 97 N.W. 969,91 Minn. 311
• Parties: JANE A. PHILIPS and Another v. KNUD E. MO and Others
• Court: Minnesota Supreme Court

97 N.W. 969

91 Minn. 311

JANE A. PHILIPS and Another v. KNUD E. MO and Others

Nos. 13,730 - (156)

Supreme Court of Minnesota

January 15, 1904

Appeal by plaintiffs from an order of the district court for Redwood county, Webber, J., denying a motion for a new trial, after a trial and findings in favor of defendants. Affirmed, without prejudice to plaintiffs' right to apply for a modification of the findings.

SYLLABUS

Mortgage.

In this, an action to have an absolute deed declared to be a mortgage and to redeem therefrom, the findings of fact are sustained by the evidence.

Evidence.

In the practical application of the rule that evidence is admissible of collateral facts which have a direct tendency to show that the testimony of the witnesses on one side of the issue is more reasonable than that of the other side, a fair discretion is allowed the trial court, and evidence of such collateral facts is to be received with caution.

Evidence of Collateral Facts.

The trial court did not err in refusing to receive evidence of such collateral facts, nor in rejecting certain evidence offered in rebuttal.

Thos Hessian, C. R. Davis, and P. J. McLaughlin, for appellants.

Somerville & Olsen, for respondents.

OPINION

START, C.J.

This is an action to have an absolute deed, which was executed by the plaintiff to the defendant Knud E. Mo for four hundred acres of land in the county of Redwood, declared to be a mortgage and to redeem therefrom.

The complaint alleged, in effect, that the plaintiff Jane A. Philips was at the time hereafter stated the owner of the land, subject to a mortgage thereon, which had been foreclosed on August 29, 1896, and the land bid in by the mortgagees, Messrs. Alden & Dutton, for $5,876.75, and the usual certificate of sale executed to them; that the plaintiffs, on August 24, 1897, made a contract with the defendant Knud E. Mo, whereby he was to loan to them the money necessary to redeem the land from the foreclosure sale; that pursuant to such contract he paid to the holders of the certificate of sale the amount then due thereon, $6,548.37, and took from them a quitclaim deed of the land and an assignment of the certificate; that the plaintiffs also executed to him a quitclaim deed of the land upon his promise to reconvey the land to the plaintiff Jane A. Philips on being paid the amount so advanced, with interest at the rate of seven per cent. per annum; that the deed was executed as security for such payment; that the plaintiffs remained in possession of the land, and paid as interest on the loan the sum of $955; that the defendant Knud E. Mo conveyed the land by quitclaim deed to the defendant Hans Mo, and also gave a mortgage thereon to the defendant Mark D. Mitchell; and, further, that the plaintiffs are ready and willing to pay the amount of such loan and redeem the land, but the defendants deny their right so to do. The complaint demanded judgment that the deed be declared a mortgage, that the amount due thereon be ascertained, that the plaintiffs be allowed to redeem the land, and for general relief.

The answer admitted the purchase of the certificate of sale and the amount paid therefor by the defendant Knud E. Mo, but denied the making of the contract alleged in the complaint, and alleged that the contract between the parties was to the effect that the defendants Knud E. Mo and Hans Mo, in consideration of the conveyance of the land to Knud E. Mo by quitclaim deed, agreed to convey to the plaintiffs, or one of them, the north eighty of the land upon being paid within a reasonable time the amount paid by them for the eighty acres, in the purchase of the certificate of sale, interest, and taxes; that such purchase price was $1,309.65, and the taxes $53.50, and that the plaintiffs have never paid any part thereof; and, further, that after the execution of the quitclaim deed the defendant Knud E. Mo leased the land to the plaintiffs at an agreed annual rental of $458.38; that only $843 has been paid on such rent; and, further, that since August 26, 1897, the plaintiffs have been in possession of the land as the tenants of the defendant Knud E. Mo.

The trial court found the facts to be as alleged in the answer, and, further, that the land was worth no more than $6,800 at the time the contract was made, but that it is now of the value of $16,000. The sixth finding of fact was as follows:

"That on the 26th day of August, 1897, the plaintiffs duly executed and delivered to the defendant Knud E. Mo a quitclaim deed conveying to said defendant all of the land described in the complaint herein. That in consideration of the giving of said quitclaim deed the defendants Knud E. Mo and Hans Mo made and entered into the following verbal agreement with the plaintiffs, viz., that in consideration thereof the said defendants would, upon the payment to them of the amount paid by the defendants to Alden and Dutton for the north eighty acres of said land, being the northeast quarter of the northwest quarter and the northwest quarter of the northeast quarter of said section 19, township 109, range 39 aforesaid, and payment of the taxes, if any, paid by the defendants thereon, and interest upon said purchase money and taxes at seven per cent. per annum, then said defendants would convey to the plaintiffs, or one of them, the said eighty acres of land, provided such payment be made within a reasonable time thereafter. That the purchase price paid by Knud E. Mo to Alden and Dutton for said eighty acres of land was one thousand three hundred and nine and...