Stannard v. Marboe

• Decision Date: 11 April 1924
• Docket Number: No. 23940.,23940.
• Citation: 198 N.W. 127,159 Minn. 119
• Parties: STANNARD et al. v. MARBOE.
• Court: Minnesota Supreme Court

159 Minn. 119

198 N.W. 127

STANNARD et al.

v.MARBOE.

No. 23940.

Supreme Court of Minnesota.

April 11, 1924.

Appeal from District Court, Chisago County; J. N. Searles, Judge.

Action by Luke Stannard and others against Anna M. Marboe. From an order denying a motion for amended conclusions of law or for a new trial, defendant appeals. Affirmed.

Syllabus by the Court

A mortgagee of the vendee in a contract for deed is included in the word ‘assigns' as used in section 8081, Gen. St. 1913.

The recording of such mortgage is constructive notice to the vendor, and, like actual knowledge, requires the vendor to serve notice of cancellation upon such mortgagee in order to terminate his rights in the interest of the vendee under the contract. John N. Berg, of Minneapolis, for appellant.

S. B. Wennerberg, of Center City, for respondents.

WILSON, C. J.

This is an appeal from the order of the trial court denying defendant's motion for amended conclusions of law or for a new trial. The action seeks to annul the service of a notice to cancel a contract for deed.

The record presents two questions: (1) Is a mortgagee of a vendee in a contract for deed an assignee under section 8081, G. S. 1913? (2) Is the recording of such mortgage notice to the vendor?

1. The statute cited above provides for cancellation of contracts for sale of land upon default by requiring notice to be served upon the purchaser, his personal representatives or assigns, etc. We are here interested in the word ‘assigns' as used in this statute. This court has heretofore approved the following definition for the word ‘assignment’:

‘A transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein.’ Brown v. Crookston Agricultural Association, 34 Minn. 545, 26 N. W. 907.

This court has also said that the word ‘assigns,’ but not referring to this statute, was sufficiently broad to include a mortgagee. Such is the general rule. 5 C. J. 1310, 1311; United States v. Commonwealth Title Ins. & Trust Co., 193 U. S. 651, 24 Sup. Ct. 546, 48 L. Ed. 830. It is not necessary for us to elaborate upon the legal attributes of a mortgage. Fredeen as vendee under an executory contract for deed had an interest in the premises which he could mortgage. Such vendee has an equitable title which is capable of being mortgaged. Niggeler v. Maurin, 34 Minn. 118, 24 N. W. 369; 27 Cyc. 1037, 1038; Shraiberg v. Hanson, 138 Minn. 80, 163 N. W. 1032;Wellington v. St. P., M. & M. Ry. Co., 123 Minn. 483, 144 N. W. 222;Scott v. Farnam, 55 Wash. 336, 104 Pac. 639. Under the definition above given, the assignment could relate to any estate or right in the land. It would not have to cover the whole. We are of the opinion that a mortgagee is included in the word ‘assigns' as used in this statute; and we think this conclusion is well supported by the authorities. Alden v. Garver, 32 Ill. 32;Scott v. Farnam, 55 Wash. 336, 104 Pac. 639;Sinclair v. Armitage, 12 N. J. Eq. 174;Greensboro Bank v. Abram Clapp, 76 N. C. 482.

2. The appellant claims that the record of an instrument in certain cases is notice only to those who are bound to search for it. Bailey v. Galpin, 40 Minn. 319, 41 N. W. 1054. Here there is no defect that puts this recorded mortgage in an unusual classification. This case does not come within that rule. We think by inference, this court in Hage v. Benner, 111 Minn. 365, 127 N. W. 3, used language consistent with the views that we are now adopting. This mortgage was on record for many months before this notice was served on the vendee. It was constructive notice of the rights of the mortgagee, and such rights are too important to...