241 N.W. 45 | Minn. | 1932
This is a companion case to that of Larson v. Tweten,
The decision in the appeal of Emil A. Larson,
But we think the findings of fact are not sustained by the evidence; and, even if they had been, the judgment should not have been entered in the form it was.
It is to be noted that the first cause of action set forth in intervener's complaint is deficient in this: There is an allegation that the assignment of the mortgage from Edward Larson to his wife was not upon a fair consideration. The wife held the note and mortgage nearly a year. There is no allegation as to the consideration passing when the mother assigned the same to her daughters, the plaintiffs herein, except in the cause of action charging conspiracy. Nor is there any evidence that it was the intention of any of the three women concerned to defraud the intervener or other creditors. On the contrary, every one must know that not one of them had the slightest knowledge that the intervener had deposited money in the bank of which Edward Larson was a director. It is also clear enough from the record that Larson himself harbored no suspicion that intervener would or could make a claim against him on account of the deposit of November 14, 1925. And, finally, to find that these parties several months prior to the commencement of the action by intervener to hold Larson liable for the deposit in the bank of November 14, 1925, conspired together to hinder, delay, or defraud intervener of his claim goes entirely too far. In order to conspire to defraud intervener the conspirators must be shown to have knowledge of the existence of his claim against *373
Edward Larson or that Edward Larson had committed some wrongful act out of Which a claim could arise. In justice to plaintiffs, the findings predicating relief on the conspiracy cause set forth in intervener's complaint must be vacated. With reference to another trial it may be said that the assignment of the mortgage by Larson to his wife was not void. Kersten v. Kersten,
We also think the judgment wrong in this: The foreclosure of the mortgage was valid so far as appears from this record. The period of redemption expired long prior to the levy of the execution. The intervener's judgment is less than half the value of the mortgage. Plaintiffs would have the right of redemption if intervener's judgment is declared superior to their rights. Upon such redemption they should be entitled to hold the same title they acquired before the levy.
The judgment is reversed. *374