41 Minn. 388 | Minn. | 1889
This action is brought to recover possession of ■a quarter-section of land occupied by the defendant. Each party claims to have the title in fee. The plaintiff claims to have derived title under a mortgage executed by defendant to one Eollins, to secure the sum of $2,000 and interest, payable three years after date. In February, 1879, this mortgage was assigned by Eollins to one Eeuben Mayo, the defendant’s brother, but remained in the possession cf the defendant till March 7, 1879, when, at Osceola, in the county of Polk, in the state of Wisconsin, the defendant executed an assignment of the mortgage to Farnham & Lovejoy of Minneapolis, in the name, but without the authority, of Eeuben; and attached to the assignment is a certificate of acknowledgment of the same, purporting to be made by the court commissioner of Polk county,'Wis., of the •date last mentioned, but such certificate is not authenticated in any ■ manner. Defendant soon after delivered the mortgage with the assignment to Farnham & Lovejoy, who held the rest of his property in trust to pay debts, and the evidence tends to show that they received and held the mortgage in the same way. The next year, in June, 1880, they caused both the assignments above referred to to be recorded in the office of register of deeds of the proper county. Farnham & Lovejoy afterwards proceeded to foreclose the mortgage in question as assignees, by advertisement, and the premises were bid off by them under such proceedings on the 25th day of February, 1882, at the price and sum of $2,780. Defendant was in actual possession and occupation of the premises, and was duly served with notice of the foreclosure, as required by the statute. Farnham & Lovejoy afterwards, in 1885, conveyed the premises by warranty deed to one Winthrop Young, and the latter conveyed the same to the plaintiff, in May, 1886, for the consideration recited in the deed of $14,000.
1. The defendant is estopped, by his own acts in procuring and delivering the last assignment of the mortgage, as against any one acting upon the faith of its genuineness, from disputing the validity thereof.
3. The act of February 27, 1885, (Laws 1885, c. 179,) makes the record of all conveyances of real estate, whether properly admitted to record or otherwise, prima facie evidence of the contents of the original instruments of which they purport to be the records, “ and all such records shall in all respects have. the same force a,nd effect as they would have if such original instruments, at the time they were so recorded, had been legally entitled to record, * * *: provided, that nothing in this act shall be held to affect any vested rights.” At the time of the passage of this act the legal title of the premises still remained in the defendant, subject to the mortgage, — Farnham & Lovejoy having failed to acquire title under the foreclosure; and whatever effect the curative statute might have as to.future proceedings, it could not give legal validity to a previous void foreclosure, or divest defendant’s title, or deprive him of his right to redeem the mortgaged premises. Willis v. Jelineck, 27 Minn. 18, (6 N. W. Rep. 373;) O’Brien v. Krenz, 36 Minn. 136, (30 N. W. 461.)
4. The record is entirely insufficient to show that the transfer by Farnham & Lovejoy to Young was so influenced or encouraged by the defendant as to work an estoppel against him. And while it is not clear that he understood what his exact legal rights in the land were, or whether he had any left, he manifested a disposition all along to hold on to the possession of the premises, which embraced his homestead. The case, then, turns finally upon the question whether the defendant has by his conduct estopped himself
Order reversed.