Solberg v. Wright

• Decision Date: 14 February 1885
• Citation: 33 Minn. 224,22 N.W. 381
• Parties: SOLBERG v WRIGHT AND OTHERS.
• Court: Minnesota Supreme Court

33 Minn. 224

22 N.W. 381

SOLBERGvWRIGHT AND OTHERS.

Supreme Court of Minnesota.

Filed February 14, 1885.

Appeal from a judgment of the district court, Blue Earth county.

Daniel Buck, for appellant, Charles B. Solberg.

Lorin Cray and Thomas & Washburn, for respondents, (except David Wright.)

VANDERBURGH, J.

It appears from the record that on the twenty-eighth day of October, 1875, one McDonah was the owner of two notes, secured by a mortgage upon the land described in the complaint, in which he was payee and mortgagee; and that on that day he duly assigned and delivered one of the notes, viz., the one falling due June 1, 1876, to John Thomas and O. W. Price; and did also, upon the same day, as found by the court, “bargain, sell, and assign said mortgage to said Thomas and Price to secure the payment of said note.” The assignment was duly recorded November 15, 1875. Thereafter, on December 1, 1875, the mortgagee, McDonah, who retained the remaining note, which had matured June 1, 1875, sold and assigned the same to the plaintiff, and delivered over to him, without written assignment, the original mortgage. Thomas and Price foreclosed the mortgage by advertisement, and bid in the premises under a sale thereof on the fifth day of December, 1876. After the expiration of the time of redemption they sold the land to the defendant Perrin, who mortgaged the same to defendant Shepherd. The plaintiff now brings this action to foreclose the mortgage, and claims that the prior foreclosure was unauthorized and void.

As between several assignees of the same mortgage, the record of an assignment is notice to subsequent purchasers and assignees. It was competent for McDonah, while the owner of the mortgage and of both notes, to assign the mortgage security to Thomas and Price so as to give their note the preference in the application of the proceeds realized from the security. wilson v. Eigenbrodt, 30 Minn. 6; S. C. 13 N. W. REP. 907. And this is, we think, the legal construction of the assignment which appears to have been made by him; that is to say, he assigned his entire legal estate or interest in the mortgage to secure their note.

He would then retain only an equitable interest in the surplus after satisfying their claim, and his subsequent assignee, the plaintiff, would simply succeed to his rights. Foley v. Rose, 123 Mass. 558;Bryant v. Damon, 6 Gray, 564. If, however, the nature of the assignment were otherwise and Thomas and Price held the mortgage as their assignee held it, as security for both notes, still they would hold the legal title thereof and would be entitled to foreclose under the statute, and to execute the power of sale, subject to the equitable control of...