Stuart v. Lowry
| Decision Date | 07 February 1890 |
| Citation | 42 Minn. 473 |
| Parties | DAVID A. STUART <I>vs.</I> THOMAS LOWRY. |
| Court | Minnesota Supreme Court |
Action to determine adverse claims to lands in Anoka county. The defendant answered, claiming title in fee, and by consent a trial was had in Hennepin county, before Young and Hicks, JJ., who found these facts: On October 5, 1878, Fred G. Mayo (the common source of title) executed a power of sale mortgage to E. F. Rollins, which was duly recorded. On February 18, 1879, Rollins assigned the mortgage to Reuben H. Mayo, brother of Fred G., the mortgage and assignment being placed in the possession of Fred G., where they remained until March 7, 1879, when he procured Reuben to assign the mortgage to Farnham & Lovejoy. This assignment was acknowledged before a court commissioner of Polk county, Wisconsin, but the commissioner's certificate was not authenticated by any certificate of the clerk of the court as required by Gen. St. 1878, c. 40, § 9. Having obtained this assignment, Fred G. delivered it to Farnham & Lovejoy, and the two assignments were recorded. Default having been made, Farnham & Lovejoy caused the mortgage to be foreclosed under the power, and at the sale, on February 25, 1882, became the purchasers. The notice of sale was personally served on Fred G., who had full knowledge of all the proceedings, but took no steps to stop the sale. On December 12, 1885, no redemption having been made, Farnham & Lovejoy conveyed to Winthrop Young, who purchased in good faith, and paid a valuable consideration, without knowledge of the defect in the certificate of acknowledgment of the assignment by Reuben H. After this the defendant visited the property, which was shown to him by Fred G., who resided upon it, and who told him that Young owned and desired to sell it, and soon afterwards Fred G. told Young that he thought he could sell it to defendant. Thereupon negotiations were had between Young and defendant, and defendant bought the property, paying for it $14,000 in cash, and received from Young a deed on May 5, which was recorded May 10, 1886. All this was done with Fred G.'s knowledge, and he made no claim of ownership or that the title was not in Young as appeared on the record. On May 1, 1886, Fred G. conveyed to plaintiff, and the deed was recorded May 3, 1886.
As conclusions of law the court held (1) that the record of the assignment from Reuben to Farnham & Lovejoy was validated by Laws 1885, c. 179; (2) that Fred G., by his act in procuring the assignment, by permitting the foreclosure without objection, and by afterwards acquiescing in it and in the conveyance to Young, was estopped to question the validity of the foreclosure. Judgment was accordingly ordered and entered for defendant, and plaintiff appealed.
E. E. Cooley and W. E. Akers, for appellant.
M. B. Koon, for respondent.
This is a statutory action to determine adverse claims to real estate, both parties claiming title in fee. The land is the same as that sought to be recovered in an action of ejectment brought by this defendant against Frederick G. Mayo, our decision in which, filed in August, 1889, is reported in 41 Minn. 388, (43 N. W. Rep. 78.) The action of ejectment had been tried when this action was heard and determined, but our decision upon the appeal in that case had not been filed when this cause was decided in the district court. The greater part of the case now before us consists of the evidence which had been taken in the action of ejectment; that being received,...
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