85 F. 329 | 8th Cir. | 1898
after stating the case as above, delivered the' opinion of the court.
No exception is taken by the appellants to the decree of the circuit court, in so far as it directs a sale of the strip of land 15 feet in width
In view of the doctrine last stated, which is sustained by the great weight of authority, and is approved by the federal supreme court, we are unable to concede that the plaintiff company adopted and became bound by the, mortgagor’s agreement with the purchaser of the equity of redemption to discharge a part of the mortgage debt merely because it sued the appellants to compel them to pay such portion of the mortgage debt as they had themselves assumed. It is obvious that, in bringing such suit, the mortgagee did not intend to release its lien upon any part of the mortgaged property. That proceeding cannot be regarded as an action at law, since the assumption agreement did not create any privity of contract between the plaintiff company and the appellants which would sustain such an action. Keller v. Ashford, 133 U. S. 610, 621, 622, 10 Sup. Ct. 494. In the state of Minnesota, where the suit was brought, there is but one form of action for the enforcement of private rights (Gen. St. Minn. 1894, § 5131, c. 66); and, whatever may have been the form of the suit in question, it was essentially an equitable proceeding to reach an additional obligation or security that had been given for the satisfaction of a part of the mortgage debt. The mortgagee was entitled to avail itself of that security by virtue of a well-established equitable doctrine, because the security or obligation was held by the mortgagor, who, with respect to the appellants, had become their surety for the payment of that part of the mortgage indebtedness which the appellants had assumed. Being an equitable proceeding to reach and appropriate the additional security that had been created by the assumption agreement, it is undoubtedly true that the appellants were entitled, by way of defense to the claim, to plead any facts or circumstances which rendered the enforcement of the additional obligation either unjust or inequitable. Such a defense was in fact attempted by the appellants, but the facts which they alleged and relied upon to defeat the suit were adjudged insufficient for that purpose by the supreme court of Minnesota (62 Minn. 407, 64 N. W. 1137); and in this proceeding that adjudication must be regarded as conclusive.
The suit at bar proceeds upon the theory that the lien of the mortgage has never been released as respects any part of the mortgaged property, except the 48 feet fronting on Tenth street, which was released by the plaintiff company on June 2, 1890. The mortgagee seeks to have the lien of its mortgage enforced simply as against the. mortgaged property. It did not demand a judgment over against the appellants in case there 'Should be a deficiency in the proceeds of the