Stromberg v. Lindberg

• Decision Date: 10 March 1879
• Citation: 25 Minn. 513
• Parties: John Stromberg v. C. E. Lindberg
• Court: Minnesota Supreme Court

25 Minn. 513

John Stromberg v. C. E. Lindberg

Supreme Court of Minnesota

March 10, 1879

This action was brought in the district court for Meeker county and was tried before Brown, J., (a jury being waived,) who found the facts, in substance, as follows: On May 10, 1876 the plaintiff, a farmer, mortgaged a growing crop of wheat comprising about 160 acres, to one Freeman, to secure the payment of $ 400, on October 1, 1876, with interest at seven per cent. per annum. On October 11, 1876, no part of the debt having been paid, Freeman assigned the mortgage to defendant. Prior to the assignment, the plaintiff had harvested the wheat, and stored it in his granary. The crop amounted to 854 bushels, of which plaintiff had sold 133 bushels. On the day of the assignment, the defendant, by virtue of the mortgage took and carried away 600 bushels of the wheat, worth $ 105.51 over and above the amount then due on the mortgage and all costs of the taking and care of the property, and afterwards, and between October 11, and December 28, 1876, sold, under a power in the mortgage, all the wheat so taken.

At the time of the sale the plaintiff was indebted to the defendant in the sum of $ 75, not secured by the mortgage. On December 28, defendant brought suit against plaintiff, on this debt, before a justice of the peace, and caused a writ of attachment to be issued and levied on the proceeds of the wheat remaining in his hands after satisfying the mortgage debt and costs, which surplus, amounting to $ 105.51, he delivered to the constable levying the attachment. The defendant prosecuted the suit to judgment and execution, which the officer levied on the money so attached, and, after satisfying the execution, paid the balance, amounting to $ 18.30, to the plaintiff.

All the wheat taken, except about 34 bushels, was worth 91 cents per bushel at the time of the taking, and the defendant knew its value, and knew that he was taking much more than enough to satisfy the mortgage debt and costs of foreclosure. The court further found that the purpose of the defendant was to take under the mortgage, property which was exempt from the process of any court, to convert it into money by a sale under the mortgage, and to apply the surplus to the payment of his unsecured debt of $ 75, and that the attachment and execution were sued out, and the money taken thereunder, in pursuance of this scheme to evade the exemption laws of the...