Robbins v. Larson

• Decision Date: 21 October 1897
• Parties: ROBBINS v LARSON ET AL.
• Court: Minnesota Supreme Court

69 Minn. 436

72 N.W. 456

ROBBINSvLARSON ET AL.

Supreme Court of Minnesota.

Oct. 21, 1897.

(Syllabus by the Court.)

1. The record of an assignment of a mortgage is constructive notice to all persons of the rights of the assignee, as against any subsequent acts of the mortgagee, save only as excepted by the statute.

2. Section 4183, Gen. St. 1894, to the effect that the assignment of a mortgage is not constructive notice to the mortgagor, his heirs and personal representatives, so as to invalidate any payment made by either of them to the mortgagee, applies only to the persons therein named, and has no application to a second mortgagee, or an assignee of his mortgage.

3. As between an assignee of a first mortgage, whose assignment was duly recorded before the making of a second mortgage, and the assignee of such second mortgage, the latter is not entitled to have the first mortgage canceled on the ground that, after the assignment of the first mortgage, it was paid to the mortgagee without actual notice of the assignment.

Appeal from district court, Otter Tail county; L. L. Baxter, Judge.

Action by Chandler Robbins against O. Julius Larson and others. Judgment for plaintiff. From an order denying a new trial, Stephen Menzies appeals. Reversed.

Mason & Hilton, for appellant.

Houpt & Baxter, for respondent.

START, C. J.

The facts in this case, as found by the trial court, are these: On November 28, 1888, the defendants Larson and wife executed to the defendant the Globe Investment Company their promissory note for $1,200, due in five years from its date, with interest, with a mortgage on the premises described in the complaint to secure its payment. The mortgage was duly recorded on the 15th day of October, 1888; and on November 28, 1888, the Globe Investment Company, for a valuable consideration, and in the usual course of business, duly assigned this note and mortgage to the defendant Menzies. His assignment was duly recorded December 24, 1888. Afterwards, and before the maturity of this note and mortgage, and on October 21, 1893, the mortgagors, Larson and wife, executed to the mortgagee, the Globe Investment Company,their other note, of like amount, due in five years, with interest, and secured its payment by a mortgage on the same premises described in the first mortgage. This second mortgage was duly recorded on November 22, 1893, and was given and received in payment of the first mortgage. The mortgagors, at the time of so paying the first note and mortgage, had no actual notice that they had been so assigned. Afterwards, and on March 30, 1895, the Globe Investment Company, for a valuable consideration, duly assigned the second note and mortgage to the plaintiff, which assignment was duly recorded on October 7, 1895. Other than this, neither mortgage has ever been paid. This action was brought to foreclose the second mortgage, and to cancel and satisfy of record the first mortgage. None of the defendants answered, except the owner of the first mortgage, Menzies. As conclusions of law, the trial court found that the plaintiff was entitled to judgment of foreclosure and sale of the premises on his mortgage, and, further, that the first mortgage be adjudged paid, and canceled of record. The defendant Menzies moved for a new trial, and appealed from an order denying it.

The appellant claims that the finding that the second mortgage was given in payment of the first one is not sustained by the evidence. The evidence on this fact was conflicting, and the trial court might well have found that the second mortgage was given in renewal, not in payment, of the first note and mortgage, but there was evidence sufficient to sustain the finding as made. The only other question to be considered on this appeal is whether the facts found justified the conclusions of law that as between the plaintiff, the holder of the second mortgage, and Menzies, the owner of the first one, the first mortgage should be canceled as paid, and the second one foreclosed for the exclusive benefit of the...