47 Minn. 321 | Minn. | 1891
The defendant bought of plaintiff a quantity of ■seed-wheat, and, as security for the purchase price, executed a “seed-.grain” note, and also a chattel mortgage on two cows and two horses. Subsequently defendant, having discovered that a mistake had been made in the description of the land upon which the grain was to be sown, executed another seed-grain note, antedated as of the date of the first one, and of the same tenor, except that it described correctly the land upon which the grain was sown. During the intervening time, and after the grain was sown, one Clark attached the ■crops as the property of the defendant. The plaintiff claims that the second seed-grain note was executed merely to correct the mistake in the first one, while defendant claims that it was given and -accepted as absolute payment of the first, and consequently had the • effect of discharging the chattel mortgage. We think the undisputed facts in the case conclusively establish that the second note was given merely to correct the mistake in the first, and consequently did not affect the lien of the mortgage. Even if plaintiff had promised to satisfy the mortgage, the agreement would not have been enforceable, because without consideration. Undoubtedly one note may be accepted as payment of another, and in such case no consideration, •other than the new note, is necessary to support the contract. But ¡here the new note, when given, was merely a fulfilment of the orig
The marshalling of securities between different classes of creditors, where a first mortgage covers both exempt and non-exempt property, and the subsequent lien of another creditor covers only the non-exempt property, is a subject upon which there is a conflict of decisions. The question has generally arisen where the exempt property involved was a homestead, but we see no reason for applying any different rule to homestead exemptions from that to be applied to any other exempt property. The doctrine of some courts is that the power of a court to compel a mortgagee to resort, in the first instance, to one of several estates mortgaged, is exercised only for the protection of the equities of different creditors or incumbrancers, or of sureties, and never for the benefit of the mortgagor; and that the fact that the first mortgage is on exempt as well as non-exempt property, and the second lien only on the non-exempt, does not change the general equity
But this rule, like all the rules relating to the marshalling of assets, is one founded on the basis of mere equity, and will not be enforced to the displacement of a countervailing equity, or where, for any special facts, it would be inequitable to enforce it. It is a right which the debtor must seasonably assert for himself. The mortgagee owes him no duty to assert it for him, or to institute proceedings to protect it. The equity is simply one which the law will protect, upon seasonable application of the mortgagor, where the mortgagee proceeds to enforce his mortgage.
In this case it appears that Clark levied his attachment in April, obtained his judgment, issued execution, and levied it on the crop in May. Defendant practically abandoned the ■ growing crop to the sheriff, who proceeded to harvest and thresh it, and then hauled it
Order affirmed.