Tolbert v. Horton

• Citation: 33 Minn. 104,22 N.W. 126
• Parties: TOLBERT v HORTON AND ANOTHER.
• Decision Date: 17 January 1885
• Court: Minnesota Supreme Court

33 Minn. 104

22 N.W. 126

TOLBERTvHORTON AND ANOTHER.

Supreme Court of Minnesota.

Filed January 17, 1885.

Appeal from an order of the district court, Olmsted county.

Charles C. Wilson, for respondent, James Tolbert.

Kellogg & Eaton and R. A. Jones, for appellants, Hiram T. Horton and another.

BERRY, J.

The mortgage executed by P. M. Tolbert to defendant contained these words, following a description of the mortgaged property, viz.: “All the said property being *** free from all incumbrances except a mortgage heretofore given on a part of said property to one James Tolbert,” (the plaintiff.) Upon the former appeal in this action (31 Minn. 518, S. C.18 N. W. REP. 647) we held that from this recital “the defendant is conclusively presumed to have had express notice of the former mortgage to plaintiff, and that, as to defendant, it was valid, and defendant's mortgage subject to it, irrespective of filing.”

1. This holding appears to us to dispose of the second, third, fourth, and eighth assignments of error upon defendant's brief. Plaintiff's mortgage, of which defendant is held to have had notice, contains an express acknowledgment of the indebtedness of P. M. Tolbert to him in the sum of $4,533, and expressly states that it is executed to secure that indebtedness. Inasmuch as there is no evidence in the case tending to dispute the existence of the indebtedness thus admitted in the plaintiff's mortgage, the further evidence of such indebtedness received upon the trial was purely superfluous and immaterial, and hence, whether competent or not, worked no harm.

2. As we read the settled case, the entire testimony of Barber as to what property was put into plaintiff's mortgage was stricken out, with the very just remark upon the part of the court that it did not “add to or take from” the mortgage itself.

3. The requisition upon the sheriff in this “claim and delivery” action, and his return thereon, were properly received in evidence, for the purpose indicated, in Bennett v. Schuster, 24 Minn. 383.

4. Testimony that P. M. Tolbert told defendant, at the time when he “bargained” for his mortgage, that there was no incumbrance on the horses involved in the present action, and that they were not included in plaintiff's mortgage, was properly excluded. It was res inter alios as respected plaintiff and his rights under his mortgage, executed months before the statements mentioned purported to have been made.

5. The horses in controversy are described in plaintiff's mortgage as “three four-year-old horses,” and, together with the other property mortgaged, as “all being now in the possession of said first party, (P. M. Tolbert,) in the city of Rochester and town of Rochester.” The evidence tends strongly to show that, at the time of the execution of the mortgage to plaintiff, the horses were three years old, coming four, so that, as respected their age, there was a misdescription; but...