101 Minn. 5 | Minn. | 1907
Action to determine adverse claims to real estate. The complaint alleged that the plaintiff was the owner in fee of the land therein described, that it was vacant and unoccupied, and that the defendants claimed an estate or interest therein adverse to the plaintiff. The answer of the defendant Peter Thompson denied that the plaintiff was the owner of the land and alleged title in himself. The trial court found that the plaintiff was the owner in fee of the land, that none of the defendants had any interest therein, and directed judgment accordingly. The defendant Thompson appealed from the judgment.
The sole question is whether the finding of the trial court that the plaintiff was the owner in fee of the land is sustained by the evidence. There is no substantial dispute as to the evidentiary facts, but the dispute arises as to the inferences of fact and law to be drawn therefrom.
Do these facts show that the lien of the defendant’s judgment was paramount to the lien of the plaintiff’s mortgage? The defendant claims that the question must be answered in the affirmative, because
The plaintiff herein was brought into the Thompson-Day action by a supplemental complaint for the purpose only of securing a cancellation of the vouchers, which were an incident to the settlement of the partnership accounts. This was the only issue tendered. No claim was made in the pleadings that either the plaintiff or his mortgagor had any notice of the alleged equitable lien of Thompson. Nor did Thompson in any manner by his pleadings refer to, mention, or challenge the recorded deed and mortgage under which the plaintiff claims title to the land. Such being the case, all the plaintiff was required to do was to answer the supplemental complaint. He was not bound to file a cross-bill to establish his recorded mortgage lien which no one questioned. There being no evidence or claim in this case that the plaintiff had in fact any notice of the defendant’s equities against Day when he received his mortgage, and the judgment not being res judicata, it follows that the mortgage was the paramount lien, and that the findings of the trial court are fully sustained by the evidence.
Judgment affirmed.