87 Minn. 1 | Minn. | 1902
Action in ejectment. Defendant Betcher had judgment in the court below, and plaintiff appeals.
The facts are as follows: In' 1862 the United States, by patent, conveyed the land in controversy to one Mary Frenier, and the patent wsis duly recorded. In 1868 she conveyed the land to Brosseau and Grant, but the deed was never recorded. In 187B she executed a power of attorney to one Shillock, authorizing and empowering him to sell and convey the land for her, and under which, but after her death, Shillock conveyed the land to Mattie E. Nicholson. The deed and power of attorney were both recorded. In 1876, the year following the conveyance from Shillock, Mrs. Nicholson mortgaged the land to one Hallock to secure the payment of an indebtedness due him. Thereafter Mrs. Nicholson conveyed the land to defendant Betcher, and Betcher assumed and agreed to pay the mortgage debt. He also executed to Mrs. Nicholson a second mortgage upon the land, securing a portion of the purchase price. Under this deed Betcher entered into the possession of the land, and has since retained it. The mortgage by Mrs. Nicholson to Hallock was duly foreclosed in an action brought for that purpose, and the time of redemption has expired. This action was brought to recover the possession of the land, the right of action being based upon the title acquired through such foreclosure. Plaintiff is the administrator of the estate of one Wording, who succeeded to the mortgagee’s rights.
It will be well to note, in passing, that Mrs. Nicholson acquired no title whatever to the land by the Shillock deed. Shillock conveyed by virtue of the power of attorney given him by Mrs. Frenier, but at the time of the conveyance she was dead, and, of course, Shillock had not power to convey at that time; and, having no title, Mrs. Nicholson conveyed none to defendant Betcher. At the time of the Shillock conveyance the title to the land was in Brosseau and Grant by the deed executed to them by Mrs. Frenier in 1868, — though that deed, as we have already stated, was never recorded, — the failure to record which would, under our registry statute, render the title conveyed thereby inferior to the title conveyed by the Shillock deed, which was recorded, had Shillock had
The controversy between the parties now is just this: Plaintiff bases his right of possession under the title acquired through the void Shillock deed and the foreclosure of the Hallock mortgage, and defendant Betcher claims under the Campbell title. In the action to foreclose the Hallock mortgage, Betcher was made a defendant therein, and this court held (70 Minn. 71, 72 N. W. 827, 73 N. W. 1) that the foreclosure proceedings should be limited to the title and interest in the mortgaged property held by Mrs. Nicholson at the time the mortgage was given, and that the rights of Betcher, claiming under the Campbell title, could not' be barred by a foreclosure of that mortgage. We regard the decision in that case, whether right or wrong, — and by this remark we do not wish to be understood as doubting its correctness, — controlling in the case at bar. Plaintiff sought in the former action to foreclose the Hallock mortgage, and to have determined and adjudicated therein the rights of Betcher to the land and its possession. Betcher set up in defense in that action the same £acts he now relies upon; and the court held that the rights acquired by him under the Campbell title were superior to the rights of plaintiff, and unaffected by the mortgage, and judgment was ordered accordingly. The questions now in issue were there fully litigated, and the legal rights of the parties settled and determined. If, as was held in that case, plaintiff could not foreclose his mortgage so as to bar Betcher’s rights under the Campbell title, we are unable to see how, on principle, he can accomplish that end in an action based upon the result of that foreclosure.
But if we are in error in this conclusion, we discover nothing in appellant’s contentions to justify a reversal. In the former action it was held that the only rights plaintiff could acquire under the
But these principles can have no application in the case at bar. ft is true that defendant Betcher entered into possession of the land under the Nicholson deed; but his rights thereunder were not subordinate to, nor was he under any obligation to protect or preserve, any rights Mrs. Nicholson had in the premises, and he held possession solely in his own right and in his own interests. By Betcher’s agreement to pay the mortgage debt, he did not become bound by the covenants of the mortgage, except that he could not resist an appropriation of the land to the payment of the debt thereby secured. His contract in that respect was personal, and could be enforced against him, even without a foreclosure of the mortgage; but, if an attempt to enforce it by action were made, he could interpose in defense the fact that he obtained no title by the deed, and in consequence that there was a total failure of consideration for his assumption of the mortgage debt, and it would
Upon no principle of equity or good conscience, from the mere fact that he has continued in the possession of the land after the assertion of title thereto by the real owner thereof, can Betcher be held estopped from acquiring such adverse and paramount title. The only basis for plaintiff’s claim to the land at this time is the fact that defendant has had the possession since obtaining the Nicholson deed, which conveyed nothing to him; but no benefit accrued to the mortgagee from such possession, and inasmuch as it was not founded in any moral or legal duty to protect the mortgage lien, or the rights of those claiming under the mortgage, it is not sufficiently potent to infuse validity into plaintiff’s otherwise void title.
Judgment affirmed.
