117 Minn. 428 | Minn. | 1912
In this action, brought to determine the adverse claims to one hundred twenty acres of land in Otter Tail county, the three defendants, John W. Thorp, James A. Brown, and E. B. Keplinger, answered, each claiming a mortgage lien superior to plaintiff’s estate in the premises. The trial resulted in findings that plaintiff was the owner, subject to the liens the defendants asserted. From the judgment entered upon these findings, this appeal is taken.
On December 18, 1902, the defendant Keplinger was the owner of the land, and on that day gave defendant Austin O. Knox a con
The deed from Keplinger to Knox was dated January 13, 1908. The mortgages to Thorp and Brown were dated April 11, 1908, and that to Keplinger dated April 21, 1908. The Thorp mortgage was filed for record April 23, 1908, the Brown mortgage May 1, 1908, at 4 p. m., the deed to Knox May 1, 1908, at 4:40 p. m., and the Keplinger mortgage, May 7, 1908. The testimony shows that Mr. Baker, Keplinger’s agent, did not deliver the deed until he received the mortgage from Knox for the balance of the purchase price. Plaintiff obtained title to the property upon an execution sale under a judgment rendered and docketed in the district court of said county, in his favor and against the defendant Austin C. Knox, May 24, 1907, for $210.68.
Ever since the decision of Banning v. Edes, 6 Minn. 270 (402), it has been the law in this state that a purchase-money mortgage has priority over a previously docketed judgment against the mortgagor. Hence plaintiff’s ownership must necessarily be subject to Keplinger’s mortgage for $616.40, unless the latter lost his right by per
The evidence is clear that every dollar obtained by means of these mortgages, namely, $1,500, was paid to Keplinger upon the purchase price, and that the deed to Knox was not delivered until this money ivas turned over. The court had also ample warrant for finding that it was agreed between all the parties concerned that the delivery of the deed was to be part of the transaction of executing all three mortgages as purchase-money mortgages, to take precedence among themselves as therein agreed. The only doubt that might be entertained as to the correctness of the disposition of the case by the lower court arises from the Brown mortgage. But this vanishes when the situation and agreement of the parties are considered. The loan agreed to be made by Thorp through Brown was for $1,500, payable ten years from date, with seven and one-half per cent interest per annum. Thorp resided in New York, his agent in Minnesota. Between them there was an understanding that Brown should receive for his services part of the agreed interest as it was paid in. To carry out this agreement, the two mortgages were made; that one of Mr. Brown being very brief, conditioned to be void if $22.50 was paid on April 11 annually for ten years, this being the same date as the six per cent interest stipulated in the Thorp mortgage became due. In reali
Plaintiff also claims that, since tbe deed and tbe mortgages were not executed simultaneously, tbe mortgages may not be regarded as purchase-money mortgages. It is true that tbe Thorp mortgage was recorded before the Keplinger mortgage was acknowledged, and hence must have been delivered before. But we must consider tbe situation of tbe parties and their agents. Each one of tbe four parties to tbe transaction resided in a state where none of tbe others were. Their agents were not in tbe same town. Under these circumstances, a few days’ difference in tbe delivery of tbe instruments that completed tbe one transaction is not significant. Stewart v. Smith, supra; Demeter v. Wilcox, 115 Mo. 634, 22 S. W. 613; 37 Am. St. 422.
Plaintiff earnestly contends that, because tbe contract for purchase of tbe land was made in 1902, there could be no agreement to take back a purchase-money mortgage in 1908; tbe written contract containing no provision for a mortgage. We fail to see tbe force of this position.
In Laidley v. Aikin, 80 Iowa, 112, 45 N. W. 384, 20 Am. St. 408, tbe contract to convey bad been given three years before the purchase-money mortgage was made. Knox bad failed to make tbe payments stipulated in tbe contract, and Keplinger, by giving the thirty-day notice required, was in a position to terminate all rights under tbe contract. In this situation, bad Keplinger given a deed upon receiving back a mortgage from Knox for tbe amount due and unpaid, could it for a moment be claimed that tbe mortgage was not entitled to be considered as a purchase-money mortgage? When plaintiff obtained bis judgment, it did not become a lien on tbe unpaid amount of tbe purchase price, and be should not be beard to object to whatever agreement tbe parties mutually agreed upon to secure tbe same, as long as tbe equity of Knox in tbe land was not diminished.
The authorities relied on by appellant (Nicholson v. Aney, 127 Iowa, 278, 103 N. W. 201; Van Loben Sels v. Bunnell, 120 Cal. 680, 53 Pac. 266; Small v. Stagg, 95 Ill. 39) are not applicable, "because either it was shown that the money was a mere loan, with mo agreement- between the vendor, vendee, and mortgagor that the mortgage should be a purchase-money mortgage, or else no agreement to so consider the mortgage between these interested parties was proven. The cases of Stansell v. Roberts, 13 Ohio, 148, 42 Am. Dec. 193, and Heuisler v. Nickum, 38 Md. 270, 278, were decided upon the effect given to the recording statutes of those states.
Judgment affirmed.
