Schoch v. Birdsall

• Decision Date: 23 February 1892
• Citation: 51 N.W. 382,48 Minn. 441
• Parties: SCHOCH v BIRDSALL.
• Court: Minnesota Supreme Court

48 Minn. 441

51 N.W. 382

SCHOCHvBIRDSALL.

Supreme Court of Minnesota.

Feb. 23, 1892.

(Syllabus by the Court.)

1. A mortgage of a parcel of land, made and recorded before the mortgagor acquires title, in order to raise part of the purchase money therefor, held not to take precedence of a mortgage by him to the vendor for the remainder of the purchase price, made at the time of the execution of the deed, and taken by the latter in good faith, and without notice of the existence of such prior mortgage. The lien of the last mortgage attached eo instanti upon the execution of the deed, as a part of an indivisible transaction.

2. The record of the former mortgage is not notice to such vendor under the recording act, and is not, as to him, a purchase-money mortgage.

3. A slight variance in the description of the quantity of the mortgaged premises, between that contained in the notice of foreclosure by advertisement and that in the mortgage, held not fatal to the validity of the foreclosure, in the absence of any evidence of actual prejudice.

Appeal from district court, Hennepin county; POND, Judge.

Action by Andrew Schoch against Anne Birdsall to determine defendant's adverse claim to certain land. Judgment for plaintiff. Defendant appeals. Affirmed.

Daniel Fish, for appellant.

Holcombe & O'Reilly, for respondent.

VANDERBURGH, J.

The action is brought by plaintiff, alleging possession to determine defendant's adverse claim to the premises in question. By the pleadings it appears that each party claims under a mortgage executed by the same party as owner. The plaintiff's mortgage having been foreclosed, and the time of redemption having expired, he claims to have acquired a clear title in fee. Each is claimed to have been given for the purchase money, and each party insists upon a priority over the other. The facts, as found, are as follows: On May 26, 1887, plaintiff was the owner in fee of the village lot in question. On that day he sold and conveyed the same to one Wilhelmina Bothman for the consideration of $750. Of that sum she paid him in cash the sum of $375, and, to secure the balance of the purchase price, she executed and delivered to him, simultaneously with the delivery of the deed to her, a mortgage of the same date therefor, which is the mortgage above referred to, as having been foreclosed by plaintiff, and under which he now claims title. This mortgage was duly recorded on the 28th day of May, 1887. On May 24, 1887, the defendant Birdsall loaned to Wilhelmina Bothman and her husband, John Bothman, the sum of $400, for the period of three years; and to secure the same they thereupon, upon the same day, joined in a mortgage of the same village lot, running to the defendant, which mortgage was recorded on the 25th day of May, 1887, and is the mortgage under which she claims. Of the money so borrowed by the last-named mortgagors, the sum of $375 was used by Wilhelmina Bothman in making the cash payment to plaintiff on her subsequent purchase of the lot of him. When they executed the mortgage to defendant, neither of them had any title to or interest in the property; and at the time of the sale of the lot to Bothman by plaintiff, and the execution and receipt of her mortgage to him, and for a long time thereafter, he had no knowledge whatever of defendant's mortgage. Upon these facts, plaintiff's mortgage was clearly entitled to the priority.

The mortgage to the defendant had not attached before the conveyance by plaintiff to Bothman; neither did the lien thereof intervene between the conveyance to her and her purchase-money mortgage back to plaintiff. The seisin being instantaneous, the lien of plaintiff's mortgage took precedence of any...