Boice v. Boice, 27 Minn. 371

Boice v. Boice

27 Minn. 371 | Minn. | 1880

Berry, J.

The plaintiff’s application for a postponement of the trial of this action was addressed to the discretion of the district court. So far as the motion for a new trial was based upon the refusal to grant this application, and the alleged consequences of the same, we think, without entering into details, that the district judge assigns very satisfactory reasons why a new trial should not be granted. As to the merits, the court was amply justified by the evidence, especially by the testimony of Mr. Colburn, in finding that the so-called land agreement was merely an additional security for the debt covered by the chattel mortgage, and was not intended to operate as a release of the mortgage, or to affect *373the defendant’s rights thereunder. If this is so, it follows that the land agreement did not, as plaintiff’s counsel contends, “merge or extinguish” the mortgage, or-extend the time of its payment.

The chattel mortgage contains a clause authorizing the mortgagee to take possession of the mortgaged property and sell it in ease he “shall at any time deem himself insecure.” This is the clause under which the defendant, the mortgagee; claims in his answer to have taken the property. The clause conferred a valid authority, and there is testimony in the case reasonably tending to show that defendant acted under it in taking the property, and therefore to sustain the finding that it was taken under and by virtue of the mortgage. The right of the mortgagee under this clause, being a contract right, could not be impaired by legislation subsequent to the execution of the mortgage. For this reason, if for no other, it is not affected by Laws 1879, c. 65, § 2, cited by plaintiff. * It would also seem that there was evidence going to show that of the amount secured by the mortgage at least one year’s interest of the principal debt was due and unpaid at the time when the property was taken by the defendant, so that, to that extent, there was a default in the performance of the conditions of the mortgage, upon the occurrence of which the mortgagee was authorized, as is usual, to seize and foreclose.

Judgment affirmed.