Rogers v. Holyoke

• Decision Date: 01 January 1869
• Citation: 14 Minn. 158
• Parties: HIRAM ROGERS v. THOMAS HOLYOKE.
• Court: Minnesota Supreme Court

Page 158

14 Minn. 158

HIRAM ROGERSv.

THOMAS HOLYOKE.

Supreme Court of Minnesota.

Appeal by plaintiff from an order of the district court, Ramsey county, refusing to allow an injunction.

The action was to have the title in fee to certain real estate in the city of St. Paul and real estate in West St. Paul, Dakota county, declared to be in plaintiff free and clear of any right and equity of redemption on account of a certain mortgage held by the defendant, and to quiet plaintiff's title. The complaint prayed for an injunction pending the action to restrain defendant from proceeding in an application made by him in an action by John M. Gilman against him to set aside a foreclosure sale in the latter action. The application for the injunction was made in the complaint. The complaint set forth in brief that one D. A. Robertson, being the owner of the premises, leased April 7, 1856, part of that in the city of St. Paul to George W. Armstrong and Daniel S. Norton for five years, with privilege of renewal, on certain conditions, for 20 years, and June 11, 1858, the said lessees assigned to plaintiff. June 5, 1856, said Robertson leased the remainder of the property in that city to plaintiff for the term of 20 years, both leases being duly recorded. Plaintiff has made expensive improvements on the property. That October 17, 1857, Robertson and wife executed to one Whitaker a mortgage upon said leased premises to secure a note for $2,800, and at the same time executed to him to secure the same debt a mortgage upon the property in West St. Paul. It alleges that August 1, 1859, said Robertson and wife executed to defendant a mortgage for $8,000 upon the premises in the city of St. Paul, and another for the same debt upon the premises in West St. Paul, both of which mortgages were recorded. Also, that on said August 1, 1859, said Robertson and wife executed various other mortgages to defendant upon various property — one for $4,000, another for $4,000, one for $7,000, one for $4,000, and one for $10,000. That the only consideration actually advanced by defendant for said mortgages was only about $4,500, and that the mortgages were made fraudulently to put the property beyond the reach of Robertson's creditors. It also alleges the recovery of certain judgments, which became liens on the real estate subsequent to defendant's mortgage. That in an action in the circuit court of the United States, brought by said Whitaker against said Robertson and wife, this defendant and the creditors in said judgments not being parties thereto, a decree was entered for the foreclosure of the Whitaker mortgages, and for the sale of the mortgaged property to satisfy the mortgage debt. That the sale was had December 28, 1862, and the property sold and conveyed to said John M. Gilman; and that June 7, 1866, Gilman conveyed by warranty deed to plaintiff. But prior to such conveyance, to-wit, about February 12, 1866, said Gilman commenced in the district court, Ramsey county, an action against this defendant and the creditors in said judgment to foreclose said Whitaker mortgages as to them, and a judgment was therein entered directing a sale of the property covered thereby to satisfy the amount found due. That the sale was made in accordance with such judgment, and the property sold to said Gilman. It then alleges that this defendant has made application to the court to have said sale set aside and a new sale ordered. It also sets forth certain facts to show that it would be unjust to this plaintiff to have the sale set aside.

Before the application for the injunction was heard the defendant filed his answer, and it was heard on that and the complaint.

Brisbin & Palmer, for appellant.

Henry J. Horn, for respondent, contended that —

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McMILLAN, J.

The answer of the defendant, we think, contains a substantial denial of all the allegations of fraud or bad faith on the part of the defendant Holyoke contained in the complaint.

The defendant Holyoke, having the second lien upon the premises by virtue of his mortgage, and not being a party to the foreclosure action commenced by Whitaker on his mortgage in the United States court, was wholly unaffected by the proceedings in that action; and, as against Holyoke the only right acquired by Gilman as purchaser at that sale was the right to a prior lien upon the premises to the extent of the money due and unpaid on the Whitaker mortgage, in the same manner as if Whitaker had assigned that mortgage to him without foreclosure....