40 Minn. 193 | Minn. | 1889
The debtor John B. Kelly was, as between him and his mortgagee, entitled to have the non-exempt 80-acre tract first applied in satisfaction of the mortgage mentioned in the findings of the trial court'. McArthur v. Martin, 23 Minn. 74. The mortgage, which covers an entire quarter-section, including the homestead of the mortgagors and the 80 acres in question, is overdue, and the amount due thereon exceeds the value of the non-exempt 80-acre tract by more than $400. .This tract, it appears, was transferred by deed by Johp B. Kelly and wife to their son, the defendant Joseph Kelly, subsequent to the execution of the mortgage, and while the defendant John B. Kelly was owing plaintiff the indebtedness sought to be enforced herein against-the land so conveyed. This convey
Estoppels by deed bind only parties and privies, and must be mut-. ual. The plaintiff claims in hostility to the alleged fraudulent conveyance ; and, if it be set aside in his favor as fraudulent and void, it cannot be considered still in force as to any of the parties to it, so as to prevent the defendant John B. Kelly and his wife from asserting the same rights for the protection of his homestead as if the alleged fraudulent deed had never been executed; and the dower interest of the wife would continue in force as if no such conveyance had been made. Malloney v. Horan, 49 N. Y. 111, 119; Elmendorf v. Lockwood, 57 N. Y. 322; Roberts v. Jackson, 1 Wend. 478, 484; Dugan v. Massey, 6 Bush, 81; Robinson v. Bates, 3 Met. 40; Sheldon v. Weeks, 7 N. Y. Leg. Obs. 57, 60; Bump; Fraud. Conv. 485; Wait, Fraud. Conv. § 46.
The court was asked to set aside the alleged fraudulent conveyance to the end that the premises might be sold, and the proceeds applied to the satisfaction of plaintiff’s judgment, but, following the rule laid down in Baldwin v. Rogers, 28 Minn. 544, (11 N. W. Rep. 77,) refused the relief sought, because, if the deed were set aside, the incumbrance exceeds the value of the property, so that there would be nothing of value left which could be reached by the creditors. The' homestead debtor is not estopped, but will be permitted to assert his equitable right in respect to the application of the mortgaged property, and the order in which the same shall be sold, on the same principle that he is not estopped from claiming his homestead right in property where a fraudulent conveyance thereof is set aside. Wait, Fraud. Conv. §§ 23, 46. This rule in favor of the homestead occupant was rejected as unsound in White v. Polleys, 20 Wis. 503. But it was afterwards adopted by the legislature, and a statute passed enforcing it. Hanson v. Edgar, 34 Wis. 653.
The plaintiff raises the point that he is entitled to the rents and profits of the non-exempt 80-acre tract until the foreclosure; but this does not appear to have been made an issue in the court below, and there is no finding upon the question of the rental value of the premises, and it does not appear what it was, so that no case was made
Judgment affirmed.
