164 N.W. 19 | N.D. | 1917
Lead Opinion
The plaintiffs aver that from October 5, 1914, to December 1, 1915, the plaintiffs did farm work and labor for and at the request of the defendant, for which he promised to pay $544.67; and that he paid only $228.01; and the balance due is $316.66. In ■September, 1916, the plaintiff recovered a judgment, and the defendant .appeals.
The answer is a counterclaim. It avers that on September 13, 1911, the plaintiff made to the defendant a promissory note to pay $325 on September 13, 1916, with interest, and that to secure the same they gave defendant a mortgage on a certain 80 acres of land in Adams ■county, subject to a prior mortgage for $150. That under the power in the mortgage the defendant declared the note to be due. The reply admits the making of the note and the mortgages, and that the prior mortgage was foreclosed by a sale of the premises. That defendant redeemed and obtained a sheriff’s deed to the land; that the total debt ■against the land did not exceed $600, and that it was worth $2,000.
It also appears that on March 24, 1911, the plaintiffs made to P. D. Norton a mortgage on the same land to secure $22.50, which mortgage was foreclosed for the sum of $67.63 and the sheriff’s certificate assigned to the defendant, and under the assignment defendant obtained a sheriff’s deed to the land.
On the value of the land the plaintiffs both testified that it was worth $20 an acre; and the defendant testified that he contracted to sell the land at $10 an acre.' The court found that the value of the land was from $800 to $1,000, and that the total mortgages against it did not
The judgment of the District Court is affirmed.
Dissenting Opinion
(dissenting). I dissent from the conclusions reached in the majority opinion prepared by Mr. Justice Bobinson.
The material and undisputed facts in this case are as follows: On September 13, 1911, the plaintiffs executed and delivered to defendant a promissory note for $325, payable September 13, 1916. At the same time plaintiffs executed and delivered to defendant a third mortgage upon an eighty (80) acre tract of land in Adams county. The holder of the second mortgage thereafter caused such second mortgage to be foreclosed by advertisement, and the premises were sold upon such foreclosure on August 16, 1913, and certificate of sale issued to one Hall, the purchaser at such sale. The defendant Little thereafter purchased the certificate of foreclosure sale from Hall, and received an assignment thereof on August 10, 1914, which assignment was recorded in the register of deeds office on the same day. On August 27, 1914, the sheriff executed and delivered to Little a sheriff’s deed upon the cer
It is elementary that merger, as a rule, depends “upon the intention, actual or presumed, of the person in whom the interests are united.”' Pom. Eq. Jur. 3d ed. § 791; 27 Cyc. 1379 et seq. And where a mortgagee takes a conveyance to land covered by his mortgage, there will be no merger where such a result would be injurious to his interest, by depriving him of his rights which he could claim and exercise by keeping the two estates distinct; for, “the result depending on his intention in the matter, if there is no proof of what such intention was, the law will presume that he intended what would best accord with his interests, and therefore will prevent a merger, in accordance with such presumed intention.” Pom. Eq. Jur. 3d ed. §§ 791-793; 27 Cyc. 1381. This principle is recognized in the authorities cited in the majority opinion. Thus, in Moore v. Olive, 114 Iowa, 650, 653, 87 N. W. 721, the supreme court of Iowa said: “It may be well to state that merger, as a rule, depends on the intention of the owner; and if there be no evidence of such intent, equity will not treat a mortgage as merged when it is to the interest of the owner, or those claiming under him, that it should continue in force.” Not a single authority cited in the majority opinion is in point on the question here presented. The cases cited, which have any bearing on the questions here involved, presented situations where a person holding both a first and second mortgage foreclosed the second mortgage and purchased the land at such foreclosure sale. In fact these authorities merely recognized and applied the doctrine announced by this court in Sletten v. First Nat. Bank, ante, — , 163 N. W. 534, that the purchaser at a foreclosure sale stands in the same position as a grantee by voluntary sale, and that the amount bid will be presumed to be the price or value of the property, less the amount of the encumbrances. The theory being that the amount of the encumbrances has been deducted from the purchase price, and that the land becomes the primary fund for the discharge of the mortgage debt.
Obviously, that doctrine can have no application here. If it has, then
Concurrence Opinion
(concurring specially). The evidence in this case seems to establish beyond question that the property acquired by the junior mortgagee in the foreclosure proceedings was worth considerably more than the amount standing against the land, including his mortgage. Under the circumstances disclosed by the record, it would be grossly inequitable to allow the junior mortgagee, who has acquired the property pledged for an amount only equivalent to the prior liens and foreclosure eosts, to hold the property thus obtained, and at the same time enforce the security. 2 Pom. Eq. Tur. 3d ed. § 794. When a redemptioner acquires property by sheriff’s deed, under the circumstances disclosed in this case, it is only equitable that his security should be discharged completely, if the value of the property warrants such finding, and pro iwnio if the surplus value over prior liens is insufficient.
