Terry v. Moran

• Decision Date: 11 January 1899
• Citation: 77 N.W. 777,75 Minn. 249
• Parties: TERRY v. MORAN et al.
• Court: Minnesota Supreme Court

75 Minn. 249

77 N.W. 777

TERRY

v.MORAN et al.

Supreme Court of Minnesota.

Jan. 11, 1899.

Appeal from district court, Ramsey county; Olin B. Lewis, Judge.

Action by Caroline S. Terry against John D. Moran and others. From an order denying a new trial, plaintiff appeals. Affirmed.

Syllabus by the Court

Two mortgages on the same land, but each to a different mortgagee, were dated the same day, executed and recorded at the same time, and both mortgagees were represented by the same agent. Held, on the evidence, the court did not err in finding that the mortgages were co-ordinate, and in refusing to find that one mortgagee, through such agent, promised the other that the latter's mortgage should be prior. William G. White, for appellant.

Warren H. Mead and Michael & Johnston, for respondents.

CANTY, J.

Plaintiff brought this action to foreclose a mortgage held by her on a certain parcel of land in St. Paul. On the trial the court found that plaintiff's mortgage and another mortgage held by defendant Frances A. Mead are co-ordinate and of equal priority. Plaintiff appeals from an order denying a new trial.

The only error complained of by appellant is the failure of the court to find that her mortgage is superior to the Mead mortgage. In 1883, Frances A. Mead was the owner of the land, and conveyed it to one Collins for the consideration of $3,000. He paid her $500 in cash, and executed to her a mortgage for $2,500 to secure the balance of the purchase price. Nearly five years afterwards plaintiff loaned Collins $600, receiving as security for the loan a second mortgage on the land. Three months later plaintiff loaned him $2,500, and he executed to her another mortgage on this land to secure the repayment of the same. The defendant Warren H. Mead acted for her in making these loans, and made them out of her money, which he had in his hands to loan for her according to his best judgment. When he made the latter loan, he applied $1,200 of the money so loaned as a part payment on the mortgage of his wife, Frances A., who at the same time executed to Collins a release of her mortgage, and received from him a new mortgage on the same land for $1,200, the balance due her. This new mortgage for $1,200 and plaintiff's mortgage for $2,500 were both dated the same day, and were executed and recorded at the same time, the former mortgage receiving the register No. 66,072, and the latter register No. 66,073. Subsequently plaintiff, acting through her...