Gray v. Blabon

74 Minn. 344 | Minn. | 1898

CANTY, J.

This action is similar to Simmer v. Blabon, supra, page 341, except that this action is brought by the assignee of the second mortgage. The answer denied, on information and belief, that any such mortgage had been executed. On the trial plaintiff introduced the second mortgage in evidence, and the assignment of it to himself, but he did not introduce in evidence the promissory note referred to in that mortgage and secured by it, or account for the absence of that note. The execution of the note and the transfer to him were not admitted. In our opinion, there was a fatal defect in his proof. He was in fact suing to recover the indebtedness for which the note was given. If he brought suit on the note, he would have to produce it on the trial or account for its absence. He would have to do likewise if he brought an action to foreclose the second mortgage, and this is, in effect, such an action.

The order appealed from is affirmed.