103 Minn. 510 | Minn. | 1908
Lead Opinion
The plaintiff, the owner of a mortgage, brought suit for its foreclosure. Defendant, a purchaser of the land subsequent to the execution of the mortgage, set up by way of answer that he had discharged the lien of the mortgage by a tender of the amount due the plaintiff, and prayed that the plaintiff take nothing. The reply denied the tender. The case was tried by the court without a jury. The conclusion of law was for the plaintiff. This appeal was from the judgment entered thereon.
An agreement was subsequently executed between the parties which, construed as a whole, operated to postpone the date of payment, but did not, by any natural construction, relinquish any right to the payment of exchange under the original note or obligation. The renewal sum was for $500, with interest at seven per cent. That the original coupon notes were payable to one party, and that under the renewal agreement $25 coupons went to one person and $10 coupons to another, “or bearer,” altered the condition of payment only as to the payee. Thirty-five dollars interest was secured by lien on the property. Moreover, an overdue coupon was produced on trial and introduced in evidence.
Defendant tendered $535.10. The amount due, including exchange, was $535.55. If this had been an action to redeem, brought by the mortgagor or his successor in interest, and this deficiency had been the only basis of objection to redemption, the court would readily have afforded the mortgagor relief. In fact, however, the result of defendant’s position is that the mortgage is discharged of record and that the mortgagee is left with the personal obligation of the mortgagor only. Under such circumstances, the law properly requires an exact tender. Hunt, Tender, p. 197, § 195. The tender here was not sufficient. The defendant, the purchaser, has his remedy by way of redemption.
Judgment affirmed.
On April 24, 1908, the following opinion was filed:
Rehearing
Appellant asked for á rehearing herein and that the judgment be so modified as to exclude the item of $50 attorney’s fees therefrom. The original opinion in this case answered in the affirmative the following question which defendant asked in his brief: “Was the provision in the mortgage for $50 attorney’s fees a valid provision in view of the statute ?” This, we understood, was the question argued. It was, however, further submitted, that the judgment, if permitted to stand, should be modified in respect to the attorney’s fees. That point has been argued at some length in this motion. “The statute does not provide,” it is argued, “that the mortgagee shall have the specified amount of attorney’s fees as a part of the debt, but merely provides that he may charge the mortgagor in the foreclosure proceedings attorney’s fees which do not exceed the amount specified.” Morse v. Home Savings & Loan Assn., 60 Minn. 316, 62 N. W. 112; Campbell v. Wor
The prayer for relief in the complaint, moreover, sought the recovery of attorney’s fees. The court must take judicial notice of the allowance by general statute of that sum under the circumstances. It was not necessary that proof of the value of the services of counsel should be made “where the allowance therefor is made at the conclusion of the trial, for the court may determine the matter from its own experience and the circumstances of the case as disclosed by the record” in view of the statutory provision. Start, C. J., in Cochran v. Cochran, 93 Minn. 284, 287, 101 N. W. 179. It is true this case involved allowance of fees in divorce proceedings. The principle, however, is identical with that here applied.
Motion for rehearing and modification denied.