73 Minn. 397 | Minn. | 1898
Briefly stated, the material facts found by the trial court in this case'are these: On February 11, 1893, Martin A. Anderson and the plaintiff were, and for a long time prior thereto had been, husband and wife, and on that day they executed a mortgage on a lot owned by Martin A. Anderson to the defendant Lee, purporting to secure a note for $2,000 made by the husband, payable to Lee
1. The appellant claims that the trial court erred in receiving evidence to show that the note and mortgage were given without any consideration therefor, for the reason that, the mortgage being under seal, it conclusively imports a consideration. The mortgage was but an incident to the' debt, as evidenced by the note it purported to secure. The note was not under seal. If there was no' consideration for the note, there was no debt, and the mortgage was not in fact a lien on the mortgaged premises, and, when an attempt was made to foreclose the mortgage and sell the premises to pay the supposed lien, it was entirely competent for the mortgagor to show that there was nothing due upon the mortgage because there was no consideration for the note, and to have the foreclosure restrained, and the apparent lien of the mortgage can
2. It is also claimed that the appellant is a bona fide purchaser of the note in good faith, for a valuable consideration; hence the court had no power to direct its cancellation and the record of the mortgage securing its payment. The trial court found otherwise, and the evidence amply sustains the finding.
3. Again, it is contended that the mortgage was given to defraud the creditors of the mortgagor, and that the respondent is estopped from asserting the nonexistence of the apparent debt secured by the mortgage as against the appellant. The case of Moffett v. Parker, 71 Minn. 139, 73 N. W. 850, is cited in support of the proposition. But in that case the purchaser affirmatively proved that the purchase was made in good faith, without notice, for a valuable consideration, and in reliance upon the representation of the mortgagors, by the mortgage and the record thereof, that it was a valid lien to secure an honest debt. If the appellant acquired the mortgage under circumstances which would estop the mortgagor from showing that it in fact secured nothing because there was no consideration for the debt it purported to secure, the burden was upon him to establish this, and to show himself to be a bona fide purchaser for value without notice. Newton v. Newton, 46 Minn. 33, 48 N. W. 450. This he wholly failed to do. There was no evidence in the case that he paid a penny for the-mortgage except as recited in the assignment thereof, — an instrument to which the plaintiff was not a party, — or that he did not know when he acquired the mortgage that it was given without consideration, and was transferred to him to defraud the mortgagors, or that he parted with a dollar in reliance upon the apparent debt secured by the mortgage. Neither he nor Lee, the mortgagee, was examined as a witness on the trial, nor was their absence accounted for.
4. The trial court did not err in receiving the evidence of the
5. The evidence sustains the findings of the trial court.
The remaining assignments of error have been considered, and found to be without sufficient merit to justify any discussion of them.
Order affirmed.