Aultman & Taylor Co. v. Pikop

56 Minn. 531 | Minn. | 1894

Dissenting Opinion

Canty, J.

I dissent from the opinion of the majority in this action. The decision of the majority requires every one of the following propositions to sustain it:

To sustain it, it must be held, as a presumption of law: (1) That the mortgage will never be paid. (2) That it will be foreclosed. (3) That the mortgagor will exercise his right to compel the mortgagee to sell- the unexempt part of the mortgaged premises first. (4) That such unexempt part, when so sold, will sell for its full value. (5) That such unexempt part will never rise in value during the year between the time of sale and the time of the expiration of redemption. (6) That the judgment creditor will not be able to sell on execution sale any such length of time before the mortgage foreclosure sale as to give the purchaser at such execution sale any beneficial or valuable enjoyment of the premises after the time to redeem from the execution sale has expired, and before the time to redeem from foreclosure sale will expire. (7) It must be further held, as a proposition of law, that the statutory right of a judgment creditor to redeem from the foreclosure of a prior mortgage is not a valuable right, which the courts will either recognize or protect. It seems to'me that none of these propositions is good law, or well founded.

It is very seldom that any one ever bids at foreclosure or execution sales, except the creditor at his own sale; and when he bids he takes into consideration the amount of his claim, and the amount of his other security, as much as he does the value of the property on which he bids. A creditor whose security is insufficient will always bid more than one whose security is ample. When one part of the mortgaged premises is a homestead, the other part unexempt, and the amount secured by the mortgage only equals the value of the latter part, the mortgagee will not bid as much for such unexempt part as a subsequent judgment creditor, having no other security, will bid for the same at his own execution sale.

If the premises are not redeemed by the owner, the real bidding takes place between the subsequent lien holders at the time for them to redeem from the sale under the prior lien. But the decision of this court denies this right in many cases such as this, by refusing to declare the subsequent judgment a lien on the unexempt property.

If it is a sufficient defense, in this case, that the unexempt property fraudulently transferred is incumbered for all it is worth, why is it not a sufficient defense in every action brought by a judgment creditor to set aside a fraudulent transfer of property? It should certainly be held that the creditor has a right to try the question of value at a public sale, and not before a jury. 1

(Opinion published 58 N. W. Rep. 551.)

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Lead Opinion

Gilfillan, C. J.

This case comes within Baldwin v. Rogers, 28 Minn. 544, (11 N. W. 77;) Horton v. Kelly, 40 Minn. 193, (41 N. W. 1031;) and Blake v. Boisjoli, 51 Minn. 296, (53 N. W. 637,)—in -which it was held that a creditor is not defrauded by his debtor conveying real estate incumbered beyond its value, and that the conveyance is not void, though made with intent to defraud such creditor, — and must be'controlled by those decisions.

Judgment affirmed.