Nos. 10,802—(239) | Minn. | Oct 26, 1897
The court below erred when it construed the mortgage involved in this foreclosure proceeding as securing to the mortgagees, or to the survivor should either die, nothing more than an annual payment during life of the sum of $75. The mortgage was not carefully drawn, and its provisions are somewhat ambiguous; but taking it as a whole, as we must, for the purpose of ascertaining the intent of the parties, we are clearly of the opinion that it was given to secure the performance of the mortgagor’s agreement to support and maintain the mortgagees, his father and mother, as long as both or either should live.
The ordinary blank form was used, and following the description of the premises conveyed and mortgaged was this recital and condition :
“Now, whereas, the said Franz Bachmeier and Fredreka Bachmeier, his wife, have this day deeded to- Gustave Bachmeier the above described real estate, for the following consideration, to wit: First. The said party of the first part, in consideration of the deed*473 ing of said property above described by tbe said parties of the second part, hereby agrees to support and maintain said parties of the second part in a good and comfortable manner, to taJke good care of them in sickpess, and to provide for all their necessary wants as a filial son should do for his parents, supplying all their wants with the exception of wearing apparel during their lifetime, and also paying said parties of the second part a yearly sum of seventy-five dollars ($75) on the first day of January in each and every year, said sum of money to be paid to the survivor of said parties of the second part should one of said parties first decease.”
Then followed a second and a third condition, relative to payments 'of money to be made to other parties, and of no interest here; and finally:
“If default is made in any of the conditions above recited and incorporated herein, the said party of the first part authorizes the said parties of the second part, or either of them, to foreclose for the amount then due.”
And following the defeasance clause was the usual power of sale, with the provision that—
“Out of the money arising from such sale to retain the principal and interest which shall then be due on the said above-recited sums and maintenance, together with all costs and charges, and pay the overplus, if any, to the said party of the first part, his heirs, executors, administrators, or assigns.”
We have italicized parts of this language for the purpose of calling attention to that which, it seems to us, indicates that the mortgage was designed to, and does, secure the performance of the mortgagor’s entire agreement, and not a small and comparatively unimportant part- of it.
As a new trial must be had, other questions presented by the record need no consideration. It is advisable to say, however, that the court below ruled correctly when it refused to allow the defendant Bachmeier to be examined by plaintiff’s counsel, under the provisions of G-. S. 1894, § 5659. He was not an adverse party within the meaning of that section. See Suter v. Page, 64 Minn. 444, 67 N. W. 67.
Order reversed.