39 Minn. 137 | Minn. | 1888
It is admitted that the relation of mortgagor and mortgagee existed between the plaintiff and Horace Thompson, since deceased, on the 25th day of August, 1876, and that the plaintiff then held the legal title of the mortgaged premises, and that Thompson held a mortgage thereon to secure the note of plaintiff, . then overdue, for $4,000, and interest at 10 per cent., upon which there was on that day a payment made of $1,000, derived from a sale of a portion of the premises. On the 15th day of November following there was found to be due thereon the sum of $3,200. The pleadings and records introduced in evidence show that the plaintiff executed a deed, with full covenants, of the lands in question, to one William Fry, the consideration named being $3,200, and that Fry executed a mortgage of the same land to Thompson to secure the same sum, with interest at 10 per cent., payable in three years, evidenced by his promissory note. These instruments are both in the handwriting of the plaintiff, and bear date November 15, 1876. On the 28th day of August, 1877, Fry, together with his wife, executed a quitclaim deed of the mortgaged premises to Thompson, and it appears by the defendants’ evidence that Thompson surrendered Fry’s note to him about a year later, and that subsequent to
Though a mortgagee may purchase the equity of redemption, yet where the relation of mortgagor and mortgagee is once established, the courts scrutinize with great jealousy the acquisition of the equity of redemption by the mortgagee in any other way than by regular foreclosure. Niggeler v. Maurin, 34 Minn. 118, (24 N. W. Rep. 369.) And additional conveyances exacted or secured by the mortgagee for his benefit cannot be used to prevent a redemption. They “proceed
It was not necessary, then, to entitle Marshall to redeem, that the deed should have passed directly from him. Whenever property is transferred, no matter in what form, or by what conveyance or contrivance for the transfer thereof, if in reality it is security for a debt or the performance of some condition, equity will treat the transfer, in effect, as a mortgage, and it is not material that the person in whom the right of redemption is recognized has -only an equitable title, or that the conveyance is made by a third party, nor whether
The findings, however, upon the issues of fact are not such as to warrant this court in ordering judgment in plaintiff’s favor, but the judgment must be reversed, and the case remanded for new trial.