Volmer v. Stagerman

• Decision Date: 18 September 1878
• Citation: 25 Minn. 234
• Parties: GEORGE VOLMER <I>vs.</I> AUGUST STAGERMAN and Wife.
• Court: Minnesota Supreme Court

25 Minn. 234

GEORGE VOLMER vs. AUGUST STAGERMAN and Wife.

Supreme Court of Minnesota.

September 18, 1878.

The plaintiff brought this action in the district court for Washington county, in February, 1873, alleging in his complaint that the defendants are husband and wife; that on January 10, 1870, a judgment for $398.70 was duly rendered and docketed in his favor and against the defendant August Stagerman and one Wolf; that no time thereafter have the judgment debtors possessed any property out of which the judgment or any part thereof could have been satisfied; that on July 16, 1870, and while the judgment was in full force, an agreement was made between the plaintiff and the defendant August Stagerman whereby the latter, in consideration that the plaintiff should satisfy his judgment, agreed to pay him $400, in two years and five months from July 16, 1870, with interest at twelve per cent. per annum, payable annually, and to execute and deliver to plaintiff his promissory note as evidence of such debt, and to secure the payment thereof by a mortgage on certain described real estate in Washington county; that thereafter and on July 16, 1870, the defendant August and his wife, the other defendant, in pursuance of the agreement, executed and delivered to plaintiff the mortgage therein required, which was duly recorded; and the defendant

August, at the same time, made a blank note, payable to the order of the plaintiff, and in accordance with the agreement, except that by mistake, inadvertence or fraud, he neglected to sign the same, and delivered such blank note to the plaintiff as a good and genuine note, in accordance with the agreement; that the plaintiff received the note, believing that it had been duly made and executed, and in consideration of the making of the mortgage, and the agreement to pay $400, and the supposed execution of the note, entered satisfaction of the judgment; that afterwards, and on the same day — July 16, 1870 — the plaintiff discovered that the note was not signed, and immediately notified the defendant August of the omission, and presented the blank note to him and requested him to sign it; but that he, designing to injure and defraud the plaintiff, has always neglected and refused to sign the same.

The complaint further alleges that on or about December 20, 1872, and at divers times since, the plaintiff demanded payment of the note and interest, but the defendants have not paid any part thereof. The prayer for judgment is that the defendant August Stagerman be required to sign the note, if produced in court, or in default that the same be declared as valid as if signed by him; that the mortgage be declared as good and valid as if the note had been signed, and a lien upon the premises described in the complaint for the sum of $400 and interest at 12 per cent. per annum payable semi-annually acording to the agreement; that the mortgaged premises be sold to satisfy such amount, and the proceeds of the sale be applied in the same manner that the same would have been had the note been signed according to the agreement, and for general relief.

The mortgage, a copy of which forms part of the complaint, is upon condition that the mortgagors "shall well and truly pay or cause to be paid to the said George Volmer, party of the second part, his heirs, executors, administrators or assigns, the sum of $400, according to the conditions of a certain

promissory note bearing even date herewith;" and it provides that "if default shall be made in the payment of this said sum of money, or the interest or any part thereof, at the time and in the manner hereinbefore specified for the payment thereof," the mortgagee may sell the property, etc., and out of the proceeds of the sale may "retain the principal and interest which shall then be due on the said note, together with all costs and charges, and pay the overplus (if any) to the parties of the first part." The mortgage also contains a covenant on the part of the defendant August Stagerman "to pay or cause to be paid said sum of money above specified, at the time and in the manner above mentioned," together with all costs and expenses, and all taxes on the land.

The defendants in their answer specifically denied every allegation of the complaint except the recovery and satisfaction of the judgment against August Stagerman and Wolf, and pleaded that the premises described in the complaint were their homestead, and had been such for more than five years; that the alleged mortgage was wholly without consideration, and ought not to be enforced; and (as a second defence) that another suit was pending between the parties upon the same cause of action.

At the trial, before Crosby, J., the plaintiff introduced evidence tending to prove an oral agreement between himself and August Stagerman that in consideration that he should satisfy the judgment, Stagerman would pay $400 in two years and five months from July 16, 1870, with interest at 12 per cent. per annum, payable annually, and would secure the same by a mortgage upon the premises described in the complaint — nothing being said about a note; that on the next day, July 16, 1870, the parties met at the office of an attorney, to whom the plaintiff stated the agreement, and who thereupon prepared the note and mortgage, and told the defendants that they were to sign the note as it went with the mortgage; that the mortgage was thereupon executed and acknowledged by the defendants, but before the note was signed the attorney was suddenly called from and left his office; that no note was delivered with the mortgage; that the plaintiff at once took the mortgage to the registry of deeds for record, and there first discovered that he had no note; that he at once sought Stagerman who promised to go with him to the attorney's office and sign the note, but failed to do so; that he had another like note drawn by the same attorney, and presented it to Stagerman for signature, which was refused; that the land belonged to August Stagerman and was his homestead. He also proved the recovery and docketing of his judgment against Stagerman and Wolf; that the sheriff, who was a subscribing witness to the mortgage, had in his hands an execution on the judgment when the mortgage was made. The defendants thereupon moved to dismiss the action, for failure to make out a cause of action, and for want of evidence to sustain the allegations of the complaint. The court reserved its decision on the motion, and the defendant introduced evidence tending to prove that he never agreed to give any note, but did agree, in consideration that plaintiff should enter satisfaction of the judgment, to give a mortgage for $400 on the lands described in the complaint, to become due December 13, 1872, but that nothing was said about interest.

The case was taken under advisement by the court, and afterwards, on September 15, 1874, an order was made dismissing the action. Subsequent proceedings in the district court, resulting in an order granting a new trial, are detailed in the opinion. From that order the defendants appealed to this court. The appeal was argued, and on March 9, 1878,...