Tomlinson v. Kandiyohi County Bank
| Decision Date | 06 March 1925 |
| Docket Number | No. 24429.,24429. |
| Citation | 202 N.W. 494,162 Minn. 230 |
| Parties | TOMLINSON v. KANDIYOHI COUNTY BANK. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Le Sueur County; C. M. Tifft, Judge.
Suit by Edith I. Tomlinson against the Kandiyohi County Bank. From an order denying a motion for amended findings or for a new trial, defendant appeals. Affirmed.
H. L. & J. W. Schmitt and H. W. Volk, all of Mankato, for appellant.
George H. Otterness, of Willmar, W. H. Leeman, of Henderson, and Francis Cadwell, of Le Sueur, for respondent.
Plaintiff is the wife of Fred W. Tomlinson, who holds title in fee to the premises in question, which he and his wife, with their children, have occupied as their homestead for about 20 years. This action was brought by the wife to have a mortgage canceled and discharged of record, which she signed, but claims was never delivered. The complaint is dated August 29, 1922, and the cause was tried in November, 1923. Findings were made and judgment ordered in favor of the plaintiff. From an order denying its motion for amended findings or for a new trial, defendant appealed.
Fred W. Tomlinson had purchased a number of brood sows from one E. S. Barker of Kandiyohi county, giving his two promissory notes in settlement therefor. Subsequently these notes were assigned to the defendant bank. Some of the sows proved not to be of the quality represented, and Tomlinson returned them to Barker, who received them, but no settlement was ever had between the parties. Payments were made on the notes so that, on June 7, 1921, there was unpaid a balance of $3,934 thereon. On that day one Benton, collector for the defendant bank, called upon Mr. Tomlinson at his home in Le Sueur and demanded payment of the notes or security for the payment thereof. Mr. Tomlinson refused to either pay the notes in full or secure them, unless the price of the sows, returned to Barker, be credited thereon, but he informed Benton that, if given credit for the sows which were returned, he would secure that balance then unpaid on the two notes.
After considerable parleying, it was agreed that they would draw up a mortgage upon the homestead for the full amount of the notes and then drive to Willmar, where Barker lived, and try to get a settlement. Benton then prepared a note and mortgage for the full amount but, before it was signed, Tomlinson, in the presence of his wife and Benton, stated that, if they signed the note and mortgage there, it was not to take effect or be delivered until a settlement was had with Barker and the proceeds thereof applied on the note. Accordingly, the mortgage and note were signed and returned to Mr. Tomlinson, who put it in his pocket, and they started to Willmar. A settlement was perfected with Barker, he giving his note payable to Tomlinson for the sum of $1,500; then the bank obtained the note of $1,500 from Tomlinson and had him guarantee payment thereof. The bank also obtained the note and mortgage covering the homestead from Tomlinson and caused the mortgage to be recorded. As to the talk between the parties had at the time of the signing of the mortgage, Mr. Tomlinson testified as follows:
"I talked in front of him (Benton) and in front of the plaintiff, that these papers were not to be used at all, unless I could make this settlement with Barker for those sows and have the amount applied on the notes, and that it was just a matter of accommodating him, letting him make the papers then instead of waiting until we go to Willmar."
The plaintiff testified, relative to that talk, as follows:
"My husband said we would sign the mortgage and note, but we wouldn't deliver it, and it wouldn't be good unless we could make a satisfactory settlement with Mr. Barker, and we are ready to start as soon as we signed those papers for Willmar."
The trial court found that the plaintiff signed the note and mortgage in reliance upon such agreements; that the same was not to be delivered until the amount due from Barker was determined and applied on the indebtedness; that the sum of $2,745 has been paid defendant thereon; that there was no delivery of said note and mortgage; that the plaintiff has never, in any manner, abandoned or modified the conditions upon which the mortgage was signed. A careful reading of the record satisfies us that the findings and order of the trial court are amply justified by the proofs.
The homestead rights in this state are fixed by sections 6957 to 6962, G. S. 1913. Section 6960 provides that title to the homestead may be...
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