52 Minn. 67 | Minn. | 1892
This was an action to foreclose a mortgage on real estate. The only questions raised by the appeal áre whether the conclusions of law were justified by the findings of fact.
1. The first and second assignments of error go to the point that a certain trust (Exhibit A of the complaint) attempted to be created by Thompson, Kingsley, and Lane, and under which they assumed to execute the mortgage in question, is void.
To this there are at least three complete answers: First. The only interest which the defendants claim in the property is under
The contention .of the defendants is that inasmuch as, under the laws of this state in force at that time, the bond would only draw seven per cent, after maturity, therefore the excess paid over that rate should be reapplied on the principal, which, if done, would more than pay the bond in full.
It seems to us that this question is settled adversely to defendants’ contention by several decisions of this court, under the statutes then in force, to the effect that if there is paid voluntarily and without any mistake of fact, as and for interest, a greater rate than is legally enforceable, the appropriation thus voluntarily made by the parties will not be disturbed. It will stand as any other payment which a person, without any obligation to do so, but with full knowledge of the facts, chooses to make. Woolfolk v. Bird, 22 Minn. 341; Taylor v. Burgess, 26 Minn. 547, (6 N. W. Rep. 350;) Cornell v. Smith, 27 Minn. 132, (6 N. W. Rep. 460.)
And there is no distinction in this respect between a case like the present, where the debtor is seeking a reapplication of such excess in reduction of the amount due upon the demand, and one where he seeks to recover it back in an action brought for that purpose. Cornell v. Smith, supra. Neither is there any ground for the distinction attempted to be made between the cases cited and the present one, because in the former there was an agreement in form, although not
3. Defendants’ last contention is that the right to foreclose was barred by the statute of limitations; the action not having been commenced until May, 1889, — more than fifteen years after the maturity of the bond secured by the mortgage.
Partial payments, however, were made every year down to 1886, and one as late as 1889; and the question is whether these payments tolled the statute, as to the mortgage. The general, if not the universal, rule is that a partial payment or an acknowledgment of the debt which would prevent the statute from running against it will also prevent the statute from running against the remedy on the security; and there is certainly nothing in our statute of limitations indicating an intention to establish any new and different rule.
The limitation as to actions to foreclose mortgages (1878 G. S. ch. '66, § 11, as amended by Laws 1887, ch. 69) is one of the provisions
By holding that an action to foreclose a mortgage is a personal action, and not a proceeding in rent, as we did in Whalley v. Eldridge, 24 Minn. 358, and Bardwell v. Collins, 44 Minn. 97, (46 N. W. Rep. 315,) and that under the provisions of 1878 Gr. S. ch. 66, § 15, the time during which the owner of the equity of redemption was a nonresident is to be excluded, as we did in Whalley v. Eldridge, supra; Rogers v. Benton. 39 Minn. 39, (38 N. W. Rep. 765;) and Foster v. Johnson, 44 Minn. 290, (46 N. W. Rep. 356,) — we virtually decided this case.
Whether a payment or other acknowledgment of the debt by the mortgagor, after he has parted with the property, will keep alive the lien of the mortgage, as against the purchaser, (a question upon which there is some conflict of authority,) it is not necessary to consider; for in the present case a payment was made within fifteen years, and before any of the appellant defendants had purchased from the trustees. And all the authorities hold that a purchaser from the mortgagor, with actual or constructive notice of the mortgage, will be bound by any previous acknowledgment of the debt by his grantor. Heyer v. Pruyn, 7 Paige, 465; Hughes v. Edwards, 9 Wheat. 489.
Judgment affirmed.
(Opinion published 53 N. W. Kep. 1130.)