59 Minn. 208 | Minn. | 1894
This action was brought upon three promissory notes for $350, each executed by the defendant, Sprague, to the Minnesota Loan & Trust Company, and by it transferred before maturity,
After the execution of the note and mortgage the premises therein described were conveyed several times to different persons, of whom defendant Sprague was one, and he conveyed the same to one Wet-more, in 1892; and, by the terms of the deed, Wetmore agreed to pay the $10,000. Wetmore owned the property at the time of the commencement of this action, and was then in possession.
The contention of the defendant is that, by the terms and conditions of said conveyance, Wetmore assumed and agreed to pay said mortgage of $10,000, and interest thereon, — the interest being the consideration for which the notes sued upon were given, — and that Wetmore became primarily liable therefor, and that, Wetmore being in possession of said premises, defendant is powerless to protect himself against loss, should he be compelled to pay the notes sued upon. The defendant also contends that, as a condition precedent to his being compelled to pay said notes, he is entitled to have from the plaintiff an assignment of said notes sued upon, together with a pro rata interest in the mortgage securing the same.
The plaintiff interposed a demurrer to the whole of the answer, upon the ground that it appeared upon the face thereof that it did not state facts sufficient to constitute a defense. The principal note1 of $10,000 is still unpaid. This is owned by plaintiff, and secured by a mortgage upon the premises owned by Wetmore. That the
(Opinion published 60 N. W. 1101.)