53 Minn. 23 | Minn. | 1893
Defendant Nettie Seelye took possession of premises belonging to her upon the surrender of a lease. In the house thereon was a large amount of personal property, a portion of which belonged to plaintiff, subject to a chattel mortgage running to defendants, Nettie and Henry Seelye, to secure a joint debt due them. Of the balance some belonged to the plaintiff, and some either belonged to or was claimed by third parties.
The evidence tended to prove that before the commencement of the action, and before the foreclosure of the mortgage, the plaintiff tendered the amount due thereon to the defendant Henry U. Seelye, one of the mortgagees, and notified him that he should thereupon claim the property covered thereby, and that he also subsequently made a similar claim and demand of the property from the defendant Nettie Seelye, after the foreclosure, and after she took possession thereunder. We think there was an issue for the jury both as to the tender to Henry U. Seelye and the refusal of the money by him, and the demand of the mortgaged property by the plaintiff before suit brought; but, in view of the harsh rule invoked by the plaintiff, the court very properly suggested that the evidence of tender and refusal should be clear and convincing.
We think, however, that the court erred in refusing to charge the jury that a tender to one of two joint debtors and mortgagees was sufficient. On the contrary, the court charged the jury that such
The creditor, receiving payment, becomes a trustee for all having an interest in the fund. A tender to one, if operative at all, must be followed by certain legal results as to the property mortgaged. Obviously it could not operate to release an individual interest. It would release all or none. While the evidence would justify the court in sending to the jury the question of the sufficiency of the demand made by plaintiff to indicate that plaintiff claimed possession of the mortgaged property on the ground of the tender and refusal, as respects the rest of the property claimed by him it is not so clear that the demand was sufficient, in view of the claims of third persons to a portion thereof, to identify what he was entitled to in case the jury should find he did not own it all.
Unless he owned all the furniture demanded, it seems to us that the defendants’ objection to the sufficiency of the demand was well taken.
Order reversed and new trial granted.
(Opinion published 55 N. W. Rep. 115.)
