Yager v. Merkle

• Decision Date: 19 March 1880
• Parties: PHILIP YAGER <I>vs.</I> JOSEPH MERKLE.
• Court: Minnesota Supreme Court

Page 429

26 Minn. 429

PHILIP YAGERvs.

JOSEPH MERKLE.

Supreme Court of Minnesota.

March 19, 1880.

The plaintiff brought this action in the district court for McLeod county, alleging himself to be the owner of certain described land in that county, and that on March 13, 1872, and thereafter until May 17, 1878, one Henrietta Hemerick was the owner and seized in fee of such land, and that on the day last named, the said Henrietta, being then the owner and seized in fee thereof, duly sold the same to the plaintiff for a valuable consideration to her paid by the plaintiff, and on the same day, the said Henrietta duly conveyed the premises to the plaintiff by a deed with full covenants, duly executed by herself and her husband, Michael Hemerick, who joined with her in said deed. That on March 13, 1872, the said Henrietta was and has ever since been and now is a married woman, the wife of said Michael, with whom she has during all said period lived and resided in this state.

The complaint further alleges that on said March 13, 1872, the said Henrietta signed and executed a mortgage for $670 upon said land to the defendant, which mortgage was not given or executed to secure the purchase-money of such land nor any part thereof; that her said husband whose wife she then was, and with whom she was then living in this state, did not join with her in executing said pretended mortgage, and has never signed or executed the same, and has never consented to the execution thereof by his wife; and that on

May 1, 1872, the defendant caused said mortgage to be recorded, and the same remains on the records unsatisfied; that said mortgage and the record thereof are null and void, and are a cloud on plaintiff's title to said land. The plaintiff charges that the mortgage was obtained by fraud and intimidation, and was without consideration, but in view of the disposition made of the case, the averments on this subject became immaterial.

The complaint further alleges that the defendant is about to foreclose the said pretended mortgage by publication, and has published notice thereof, etc., and will, unless enjoined from so doing, sell the land in such foreclosure proceedings. The prayer for judgment is that the defendant, his agents, etc., be perpetually enjoined from foreclosing said pretended mortgage; that the same be delivered up, cancelled, and declared void, and that the record thereof be cancelled and declared void, and the cloud on plaintiff's title removed.

The defendant in his answer puts in issue the charges of fraud, intimidation and want of consideration, admits the title of Henrietta Hemerick, and...