Galloway v. Litchfield

8 Minn. 188 | Minn. | 1863

By the Gourt.

Emuett, C. J.

One Rolfe mortgaged certain lands to Litchfield, one of the Defendants, and after-wards conveyed them to Defendant, Yelorous P. Lewis, subject, however, to the mortgage. Lewis convoyed the same to one Ring, by deed of general warranty, and King, by similar deed, conveyed to the Plaintiff. Intervening the two last named conveyances,YeloroueP.Lewis,by an arrangement with Litchfield, the mortgagee, credited the amount of the mortgage on one which he himself held against lands belonging to Litchfield, and took an assignment thereof to his brother, the Defendant, Franklin D. Lewis. The Plaintiff claims that this transaction between Yelorous and Litchfield paid and discharged the mortgage, and that the assignment to Franklin was a sham,«and for the purpose of fraudulently keeping alive the mortgage as an incumbrance on the lands. Issue was joined upon the questions of payment, and of fraud in the transfer to Franklin, and on the trial thereof, the jury found generally for the Plaintiff; and specially that the mortgage from Rolfe was paid, absolutely, and that the transfer thereof was for fraudulent purposes. They also assessed the Plaintiff’s •damages at 0105.60, specifying that 0100 thereof was statutory, and $5.60 li nominal damages.”

The Defendants thereupon moved the Court in the terms following:

i£ And now after verdict for the Plaintiff in this case, and before judgment, the Defendants moved for a new trial on the following grounds:

“ That said verdict is against the evidence and the weight of evidence; and also in arrest of judgment, in this:

“ 1st. That the verdict is irregular and against the law in this : that the same is among other things a general verdict against all the Defendants, for a statute penalty of one hundred dollars, which could be only rendered, if at all, against F. D. Lewis alone.

2d. That the complaint in this case does not state facts sufficient to constitute a cause of action.”

This motion was overruled by the following order, dated Api’il 14th, 1862:

“ The application of the Defendants in this action for a new trial, having been brought on for argument, after hearing, &c. * * It is ordered that the application for a new trial in this action be denied.”

The Defendants then gave notice of an appeal from an order and determination made in the action on said 14th clay of April, 1862, “ whereby a motion of the Defendants for setting aside the verdict of the jury, and for a new trial, and also in arrest of judgment, is denied.”

On the ground that there was no such order entered in the record or case as that specified in the above notice of appeal, the Plaintiff makes a preliminary motion to dismiss. But we do not think it ought to be granted. The notice refers to an order and determination made on a certain day. The only order of the date thus referred to, of which we have any notice, or which is claimed to have been made, is that above given, wherein the application of the Defendants for a new trial is denied ; and, when we come to examine this application, we find that it specifies, as grounds for a new trial, all the several matters referred to in the notice of appeal. The Defendants have therein included not only one of the statutory grounds for a new trial, but also the grounds on which they expected to obtain a new trial as the result of having the judgment arrested. In other words they included under the general head of a motion for a new trial a motion in arrest of judgment. We have no doubt that the decision, and order consequent thereon, were intended to cover all the matters embraced in the motion or application to which they refer, and as we have seen that that includes all matters specified in the notice of appeal, we think the objection urged cannot be sustained.

As regards the point made on appeal that the verdict is against evidence, we think that the evidence is ample to support tbe finding, not only as regards the payrnent, but also the fraud in the transfer from Litchfield to Franklin D. Lewis. The mortgage on Litchfield’s land, out of which the mortgage in controversy was paid or purchased, was the property of Velorous, and the jury might reasonably find, therefore, that the transaction was for the sole benefit of the party furnishing the consideration for the purchase. And to endeavor to keep alive the mortgage, after it wras thus paid, was a fraud upon the owner of the land, although the motive for so doing may have been, as Defendant Velorous claims, and as we believe, solely to protect himself against King. The effect, however, is the same, whatever may have been the motive or design. We think that so far as this part of the verdict is concerned, it is correct, and that the Plaintiff therefore is entitled to have the cloud removed from Ms title in the manner prayed for in the complaint.

We do not, however, think that the evidence sustains the general verdict against the Defendants for damages. In addition to the objection that the Plaintiff nowhere alleges that he has been damaged in any sum whatever, the verdict includes statutory damages against all the Defendants, to the amount of $100. These damages are given by statute in certain case's, as a penalty, in one sense, for neglecting or refusing, for the space of seven days after proper demand, to discharge a mortgage, the conditions of which had been fully performed; but such penalty or damages can only be visited upon a party who has it in his power legally to discharge the mortgage.

From the Plaintiff’s own showing, it was not in the power of Litchfield, or of Velorous P. Lewis, to discharge the mortgage at the time of the demand made upon them. Franklin D. Lewis alone had power to execute a legal discharge, and he only can be held to be liable for the statutory damages. And as to him even, there appears to be a peculiar hardship in making him responsible; when by the Plaintiff’s own showing, he was ignorant of thé assignment to himself until long after it was made, and consequently could not have participated in the fraudulent purpose charged. He, however, adopted the assignment after it was known to him ; and although he may have known nothing of the real nature of the transaction, and. the fraudulent purpose with which the assignment to him was made, at the time the Plaintiff requested him to discharge the mortgage, yet the statute gave him seven days after such demand, within which to inform himself, and seems to throw upon him the entire risk of coming to a correct conclusion as to what he ought to do.

The verdict, therefore, was erroneous, in so far as the statutory damages were assessed against the Defendants, Litch-field and Yelorous P. Lewis ;• but as the Plaintiff is clearly entitled, from the finding of the jury in other respects to the relief demanded in the complaint as against all the Defendants, we will not force him to a new trial upon these issues, if he will remit these damages as against Litchfield and Yel-orous. We will, therefore, reverse the order and award anew trial, unless the Plaintiff, within ten days from the service of a copy of the order to be entered herein, remit from said verdict the statutory damages, as assessed against Defendants Litchfield and Yelorons P. Lewis, and consent to take judgment therefoi• against Franklin D, Lewis alone. In which event the order appealed from is affirmed, and the Court below instructed to permit the Plaintiff to enter judgment upon the verdict, in accordance with the foregoing.

The que stion of the recovery of costs having been submitted to this Court, we hold that as the error of the Respondent compelled the Appellants to seek relie! in this Court, the latter are entitled to recover their costs and disbursements..

Ordered accordingly by the Court.