Probstfield v. Czizek

• Decision Date: 08 November 1887
• Citation: 37 Minn. 420,34 N.W. 896
• Parties: PROBSTFIELD v CZIZEK AND ANOTHER.
• Court: Minnesota Supreme Court

37 Minn. 420

34 N.W. 896

PROBSTFIELDvCZIZEK AND ANOTHER.

Supreme Court of Minnesota.

November 8, 1887.

(Syllabus by the Court.)

A party who has, for a valuable consideration, assumed and agreed to pay a mortgage upon the property of another, cannot assert title acquired under the mortgage as against the person to whom he assumed the obligation to pay. He cannot thus build up a title upon his own breach of duty.

Such a state of facts would constitute an “equity,” which may be set up as a defense to an action of ejectment brought to recover the premises on title claimed under foreclosure of the mortgage.

Appeal from district court, Clay county; STEARNS, Judge.

Burnham & Tillotson, for Probstfield, respondent.

O. Mosness, for Czizek and another, appellants.

MITCHELL, J.

The only point raised by this appeal is whether the allegations of new matter in the answer of the defendant Hattie Czizek state facts sufficient to constitute a defense. The action was brought to recover possession of lots 7 and 8, block 88, in the city of Moorhead, of which plaintiff alleged he was the owner.

While not very artistically pleaded, yet we think that the answer, fairly construed, sufficiently alleges the following facts, viz. That defendant was the owner of the property in dispute, and also of two other tracts, upon the whole of which there was a mortgage executed by her to one Huntington; that in consideration of a conveyance executed by her to plaintiff and one Mason of the other two tracts, worth $7,200, they agreed with her to assume and pay the entire mortgage, so that the lots in controversy should be entirely released therefrom; that the title under which plaintiff is now claiming to recover was acquired by a foreclosure of this identical mortgage by Huntington, and an assignment of the certificate of sale by him to plaintiff. There is no express allegation that plaintiff failed to pay this mortgage, but this is necessarily implied from the fact that he is now asserting title under it. We fail to see why these facts do not create an equity in favor of defendant, constituting a good defense to this action. The title which plaintiff is here asserting is founded entirely upon his own breach of the duty and obligation which he had assumed to defendant in regard to this very property. This he is estopped from doing. A person cannot build up a title upon his own default, and assert it against the party to whom he is in default. Allison v. Armstrong, 28 Minn. 276,9 N. W. Rep. 806;Conner v. Howe, 35 Minn. 518,29 N. W. Rep. 314.

It is unnecessary to consider whether the answer alleges facts that would have been sufficient as a defense against Huntington, were he the party asserting title under foreclosure of the mortgage. If it be conceded that it does not, this does not at all affect the application of the doctrine of estoppel against plaintiff. If he was bound by...