55 Minn. 379 | Minn. | 1893
The plaintiff and her husband executed to the defendant a promissory note as follows:
“13,000. Moorhead, July 10, 1885. Five years after date I promise to pay to the order of John W. Holmes three thousand dollars, at Fulton Bank, New York, value received, with interest before and after maturity at the rate of-per cent, per annum until paid.. Alpheus F. Lane. Mary Cole Lane.”
At the same time they executed a mortgage on the northeast quarter of section thirty two (32) T. 139 E. 48, in Clay county, to secure the payment of said note, which mortgage contains this-clause: “Provided, nevertheless, that if said Mary Cole Lane and Alpheus F. Lane, parties of the first part, their heirs, shall well and. truly pay or cause to be paid to the party of the second part, his-heirs, the sum of three thousand dollars and interest, according to-the conditions of one promissory note in the amount of $3,000, made, executed, and delivered by said Mary Cole Lane and Alpheus F„ Lane to said John W. Holmes, due five years after date, which said note is without interest, bearing even date herewith.”
There being default in the payment of the note, or any part thereof, the defendant, residing in the state of New York, sent the note and mortgage to an attorney of Moorhead, Minn., with instructions to foreclose the mortgage, but without instructions as to-the amount due. The attorney foreclosed the mortgage, and in the notice of such foreclosure proceedings it was claimed that there was due upon said note and mortgage the sum of $4,102, which amount was arrived at by computing interest upon the note at the rate of seven per cent, per annum from the date thereof to the date of the notice of foreclosure sale; and the said premises were bid off, December 15, 1890, for that sum, with expense of foreclosure added, amounting to $4,222.34. The premises were bid in by the-
This action was commenced in the month of November, 1892, to recover the sum of $1,032.80, being interest so added to the principal of said note, and claimed to be the surplus over and above the amount actually due on said note and mortgage at the time of such, foreclosure sale. On the trial in the court below the defendant in open court tendered to the plaintiff a deed of conveyance to the
In view of tbe admission of tbe parties as to tbe agreement not to pay interest on tbe $3,000, we are not necessarily called upon to decide whether tbe note drew legal interest; but when we examine tbe mortgage, and find therein a clause wherein it is stated that it is given to secure tbis note of $3,000 and interest, and then also stating that the mortgage is given to secure tbe same note without interest, we are not surprised that tbe attorney construed tbe note as drawing interest. In tbe case of Hoopes v. Collingwood, 10 Colo. 107, (19 Pac. Rep. 909,) tbe court assumes that a note similar in form to tbe one in tbis case drew legal .interest. Such uncertainty as to whether tbe note and mortgage drew interest would fully justify tbe findings of tbe court below that tbe interest so added was done in tbe utmost good faith by tbe attorney, and we do not decide but what be was legally right in such computation, so far as relates only to tbe interest on tbe note. But, in addition to tbis complex question of tbe payment of interest involved by tbe terms of tbe
Now, construing the note and mortgage together, and conceding that they did not by their terms draw interest until due, and that the attorney, in computing the interest on the note from its date to maturity, made a mistake in the law applicable thereto, is the defendant without remedy or relief? If we are correct in our view of the fact that the attorney was misled by his ignorance of the existence of a material fact by the agreement of the- parties that the note should not draw any interest, then we have to deal with two mistakes, — one of law and one of fact;, and, where both combine to constitute any injury to a party, he is entitled to equitable relief, especially where such circumstances surround the case as are presented by this record. We are not unmindful of the general rule that for a mistake of law, pure and simple, there is generally no remedy or relief, but there may be relief afforded in equity if the surrounding- circumstances are of such a nature that the adverse party is seeking to avail himself of the opportunities afforded by the mistake, and attempting to enforce an unconscionable advantage without consideration, and the other party not being blamable. Benson v. Markoe, 37 Minn. 30, (33 N. W. Rep. 38.) In the case just cited numerous authorities are quoted to show that in mistakes of law in certain cases relief may be afforded, and the case itself is an instructive one upon this question. It is also there held that such relief may be afforded for the mistake of only one of the parties, and that the mistake need not be mutual. But in cases where there
The plaintiff claims that the defendant did not offer to pay plaintiff the value of the use of the premises by defendant after the expiration of the time for redemption, amounting to $200; and that, if the defendant seeks equitable relief, he should, at the time of the tender of the deed to. plaintiff, have tendered or offered to pay her this amount. But was this essential? This is not a case between a trespasser or wrongdoer or even a tenant upon the land of plaintiff. The defendant was a mortgagee in possession after forfeiture of the conditions of the mortgage by the implied, if not actual, consent of the mortgagor. Plaintiff claims that the mortgage was legally foreclosed, and it appears that at such time she was not in the actual possession. By bringing this action in the manner and for the purpose she did she substantially asserts the right of the defendant to the possession thereof, and admits thereby that he obtained lawful possession of the premises after the conditions broken, and after the time for redemption expired. Now if, as a mortgagee, he lawfully obtained possession of the premises after forfeiture, the mortgagor could not recover possession without satisfying the mortgage. Pace v. Chadderdon, 4 Minn. 499, (Gil. 390.)
This would be so whether there was a valid foreclosure or not. At the time of the foreclosure sale the principal sum of $3,000 and accrued interest from July 10, 1890,. to time of sale was actually unpaid; and at the time of the trial of this action, June 20, 1893, there was more than $600 of accrued interest, calculating the same from July 10, 1890, upon the principal of $3,000, if there had been no foreclosure at all. This amount of interest due and payable after the conditions in the mortgage were broken amounted to three times the amount of the value of the use of the land by defendant as found by the cburt. If, therefore, the defendant was lawfully in possession of the premises, there is no equity in the plaintiff insisting that as a basis of relief to be afforded the defendant he should have tendered to the plaintiff the value of the use of the premises, viz. $200, while the defendant was in the possession thereof.
If there shall be a vacation and annulling of the said mortgage sale, and a resale of the premises under a mortgage foreclosure sale
The defendant was entitled to the affirmative relief asked for in his answer, but the foreclosure could not be allowed to stand, and at the same time the plaintiff’s action dismissed. The court, in addition to dismissing the plaintiff’s action, should, upon the facts found, also have ordered that the sale be set aside, and a resale made. No new trial is necessary, but the case is remanded with directions to the court below to amend its conclusions of law and order for judgment, in accordance with this opinion.