Rogers v. Hedemark
| Decision Date | 13 December 1897 |
| Docket Number | 10,494--(10) |
| Citation | 73 N.W. 252,70 Minn. 441 |
| Parties | LIDA C. ROGERS v. RALPH HEDEMARK and Another |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county upon a promissory note for one thousand dollars and coupon note attached thereto. The defendants' answer is given in the opinion. The court, Jamison, J., having ordered judgment for plaintiff:
Plaintiff moved for additional findings and for a new trial, and from an order denying her motions, she appealed. Affirmed.
Defendants moved to amend the findings of fact and conclusions of law and from an order denying their motion they appealed. Dismissed.
The order denying a new trial should be affirmed, and the appeals from the other two orders should be dismissed.
Geo. H Benton, for appellant Rogers.
The notes were a complete contract independent of the mortgage. Blumenthal v. Jassoy, 29 Minn. 177; Flanigan v Sable, 44 Minn. 417. A mortgagee cannot be compelled to make an assignment of the mortgage to the mortgagor. Lamb v. Montague, 112 Mass. 352; Bigelow v. Cassedy, 26 N.J.Eq. 557; Butler v. Taylor, 5 Gray, 455; Ellsworth v. Lockwood, 42 N.Y. 89. Defendants' remedy is directly against their grantee on his implied promise to them to pay the mortgages. Baker v Terrell, 8 Minn. 165 (195); Knoblauch v. Foglesong, 38 Minn. 459; London v. Fitzgerald, 55 Minn. 71; Lumbermen v. Sprague, 59 Minn. 208; Flanigan v. Sable, supra; National v. Nordin, 50 Minn. 336; Boyd v. Blake, 42 Minn. 1; Baker v. Northwestern, 36 Minn. 185; Davis v. Price, 10 Minn. 302 (376).
Armstrong Taylor, for appellants Hedemark.
Under the circumstances of this case, if the mortgage securing the note sued on was merged in the title acquired under the foreclosure of the second mortgage, then the note is paid. Babcock v. American, 67 Minn. 151; American v. Waleen, 52 Minn. 23; Corbin v. Reed, 43 Iowa 459; Vanscoyoc v. Kimler, 77 Ill. 151. So far as defendants are concerned, the case stands on the pleadings, as any ordinary action where a party with mortgaged property has conveyed it subject to the mortgage. After such conveyance he stands as regards such property or the mortgage thereon in the relation of a surety, and if compelled to pay the note is entitled to be subrogated. Knoblauch v. Foglesong, 37 Minn. 320; Emmert v. Thompson, 49 Minn. 386; Wentworth v. Tubbs, 53 Minn. 388; London v. Fitzgerald, 55 Minn. 71; Heisler v. Aultman, 56 Minn. 454; London v. Tracy, 58 Minn. 201; Flanigan v. Sable, 44 Minn. 417.
The defendants made their joint promissory note to the order of plaintiff for one thousand dollars, and secured the payment of the same by a mortgage to plaintiff on a certain city lot then owned by them. Subsequently defendants made to plaintiff another note for two thousand dollars, and secured it by a second mortgage executed to plaintiff on the same lot. From the covenants against incumbrances in this mortgage the first mortgage was excepted. Thereafter defendants conveyed the lot to one Myers subject (as expressed in the deed) to both mortgages. Thereafter plaintiff foreclosed the second mortgage under the power of sale therein contained, and at the foreclosure sale bid in the lot for the full amount due on the mortgage and the costs of foreclosure. The time to redeem expired, no redemption was made, and plaintiff became the owner of the lot. Thereafter plaintiff brought this action to recover of defendants the amount due on said note for one thousand dollars. Defendants, in their answer, set up all of the foregoing facts, and asked: First, that plaintiff take nothing by this action; and, second, that they be subrogated to the rights of plaintiff under the first mortgage.
On the trial before the court without a jury the court ordered judgment for plaintiff, but conditioned that before the entry of judgment she deposit with the clerk of the court an assignment of the note and first mortgage securing the same to defendants, to be delivered to them on payment by them of the judgment.
1. Defendants moved the court to make additional findings to the effect that the note in suit was by said transaction fully paid, and appeal from an order denying the motion. As to this appeal, it is only necessary to say that the order was not appealable.
2. Plaintiff also moved the court to make additional findings and appeals from the order denying the motion, and also from an order denying a new trial.
The order denying the motion to amend the findings not being appealable, it is only necessary to consider the order denying a new trial, and the only question worthy of consideration under the appeal is whether, on the facts above recited, plaintiff is entitled to judgment for the amount of the note, without any condition of subrogation being attached to it. We are of the opinion that she was not. Such a provision for subrogation may be made in a proper case. Knoblauch v. Foglesong, 37 Minn. 315, 33 N.W. 865. This was such a case. If the second mortgage covenanted against the incumbrance of the first mortgage, the case might be different; but it did not so covenant. On the contrary, the first mortgage is expressly excepted from the covenants of the second mortgage.
Again the notice of said foreclosure...
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