43 Minn. 547 | Minn. | 1890
The contest in this case was a triangular one. The defendants Mattisons and the defendant Waters each interposed a several answer to the complaint; the defendants Mattisons also alleging matters as a basis for affirmative relief against their codefendant, Waters, and to which Waters interposed a reply. The plaintiff interposed replies to the several answers of the defendants. The defendants each made a motion for judgment against plaintiff on the pleadings, which the court granted, and from that judgment plaintiff appeals. Therefore the only question involved in this appeal is whether sufficient of the allegations of the answers stood admitted by the plaintiff to entitle the defendants, or either of them, to judgment in their favor against him. But the triangular nature of the contest; the number of the pleadings; the fact that counsel do not always distinguish between what is in issue or what stands admitted as between two of the parties, and what is in issue or what is admitted .as between one of these two and a third party; coupled with the fact that the replies of plaintiff are, as to some matters, very vague, or else purposely evasive, — have much complicated the case, and rendered it a task of some difficulty to determine just how the facts do stand on the pleadings. We shall first state such facts as are admitted by all parties.
In 1884 the defendants Mattisons executed to one Brookhouse a mortgage for $1,000 on the whole of lot 6,' block 9, in Wright’s addition to Minneapolis, of which the defendant Cora B. Mattison was then the owner. This mortgage was recorded on the day of its execution. On the 11th day of February, 1887, the Mattisons conveyed the front 75 feet of the lot to one Turner; it being expressly stipulated in the deed that Turner, as part of the purchase price, assumed and agreed to pay the mortgage. Mrs. Mattison still owns the remainder of the lot. By deed dated July 23, 1888, Turner sold and conveyed the 75 feet to one Swain; the deed likewise reciting and stipulating that Swain assumed and agreed to pay the Brookhouse mortgage. By deed dated July 23, 1888, Swain conveyed the 75
Turning, next, to the issues between plaintiff and defendant Waters, we find that Waters alleges that, in consideration of the conveyance to him from Swain, and in order to get a clear title of the property thus conveyed, and in consideration of a promise to have the mortgage referred to released, he paid over the purchase-money, and as a part of the same transaction Cole released the portion of the lot purchased by him; in short, that Waters bargained to get a clear title, and parted with the purchase-money on the strength of the contemporaneous release by Cole, which gave him the title he bargained for. Plaintiff admits, by not denying, the transaction on part of Waters as alleged, except that he says that Waters paid the $1,000 to L. H. Cole, the agent of Swain, and not to Elmer E. Cole, — a fact which, if true, is not material for present purposes. It is also true that he alleges that the release executed by Elmer E. Cole was made without consideration. In view of the admitted fact that Waters paid his money for a clear title, this allegation can only mean that no consideration for the release was received "by Cole. But this is not important, for, if Cole saw fit, in order to enable Swain, or whoever owned the property, to give a clear title, to gratuitously execute a release, he had a perfect right to do so; and if, on the strength of that release, or of a promise that it should be given, Waters parted with the purchase price and accepted the conveyance, that would
We next come to consider the pleadings between plaintiff and the Mattisons. The Mattisons allege in their answer that, when Cole executed the release to Swain, he had knowledge of the terms and contents of the deeds from them to Turner, and from the latter to Swain, and that plaintiff also knew all these facts when he bought the mortgage of Cole. They also set up in hcec verba the release from Cole to Swain, who is therein described as “grantee of Cora B. Mattison.” Plaintiff in his reply admits the execution of the release by Cole to Swain; also that he knew of its execution when he bought the
The plaintiff invokes the familiar doctrine that a mortgagee whose mortgage is recorded is not bound to take notice of subsequent conveyances or incumbrances by the mortgagor; and that the record of such subsequent conveyances of a part of the mortgaged premises is not constructive notice to the mortgagee. The trouble is that, while this is good law, it does not cover this case. Had the Mattisons conveyed to Turner by warranty deed, so that the remaining part of the lot would have been primarily liable for the mortgage, and then the mortgagee without actual notice of this conveyance had executed to the Mattisons a release of their part, the rule invoked would apply. But in this case Cole released, not to the Mattisons, but to Swain, “grantee of Cora B. Mattison.” By the very terms of his release, he stands conclusively charged with actual notice of the fact that Mrs. Mattison had made a conveyance of the 75 feet through which Swain had acquired title; and, knowing that fact, he was bound to ascertain the terms of that conveyance, or execute the release at his peril.
Judgment affirmed.