Moody v. Tschabold

52 Minn. 51 | Minn. | 1892

Mitchell, J.

Most of the points which plaintiff and appellant seeks to raise are not presented by any sufficient assignments of error. The first and sixth assignments cannot be considered, for two reasons: First. They are not included in the points relied on in the brief, and must therefore be considered as abandoned. Smith v. Bean, 46 Minn. 138, (48 N. W. Rep. 687.) Second. They are in themselves insufficient, because too general. An assignment that “the court erred in denying a motion for a new trial,” where the motion was made on two or more distinct grounds, is insufficient. Stevens v. City of Minneapolis, 42 Minn. 141, (43 N. W. Rep. 842.) An assignment that the court erred in finding that all the material facts alleged in the answer were true is not a compliance with the requirement of Rule IX., that the assignment of error shall specify the particular finding complained of. Smith v. Kipp, 49 Minn. 119, (51 N. W. Rep. 656.) A general finding that all the allegations of a pleading are true is equivalent to specific findings of each of the facts alleged seriatim. Findings in this general form are not ordinarily to be commended, but if made in that way (to which the plaintiff does not appear to have objected) it is incumbent on an appellant to specify the fact or facts the finding of which he complains of. As these are the only assignments under which there was any show of an attempt to raise the question of the sufficiency of the evidence to support the findings, we must take the facts found as true. To ascertain what these findings are, we must, of course, refer to the answer itself. Its allegations (including its admissions) are, in substance, that plaintiff furnished the material, for which he seeks a lien, to defendant Tschabold, who at the time held merely an executory contract of sale of the premises from defendant Thompson, the title being still in the latter, and the purchase money being still wholly unpaid; that subsequently Tschabold, having failed to make payments of purchase money as provided in his contract, quitclaimed the lot to Thompson, the quitclaim being given only by way of mortgage as security for the purchase money of the lot, and not as an absolute conveyance; that still later Thompson conveyed to Tschabold, and at the same time, and as part of the transaction, took back a mortgage to secure the unpaid purchase money. The “Riley and McGrath claims” and “Thompson’s store bill, ” to which the fourth and fifth assignments of error refer, are not mentioned in the answer, and consequently not in the findings of fact. According to the findings, the quitclaim deed, and the mortgage already referred to, were given and taken as security for the unpaid purchase money of the lot. Hence the only question open to appellant is that raised by his second and third assignments of error, viz., whether upon the findings of fact the defendant Thompson was entitled to judgment as prayed for in his answer, which was that the lien of his mortgage be adjudged superior to the lien of plaintiff. On this question there can hardly be room for reasonable doubt. It is not questioned but that, as matters originally stood, plaintiff’s claim was a lien only on Tschabold’s interest in the property, and that Thompson’s title, which he still retained as security for payment of the purchase money, was paramount. The subsequent quitclaim-deed, of course, did not affect plaintiff’s lien on Tschabold’s interest in the property, and consequently gave Thompson no new or greater rights as against plaintiff; but neither did it affect Thompson’s existing right to hold the legal title as security for the purchase money.- Nor did the subsequent conveyance by him to Tschabold, and as part of the same transaction, taking back a mortgage for the purchase money, (as security for which he already had -the paramount claim on the property,) have the effect of giving priority to plaintiff’s lien. It was the same debt; and the same security in changed form, and would remain entitled to the same priority as before.

If we were at liberty to look into the evidence, it is not improbable that it would disclose a state of facts somewhat different from that found by the court, but for reasons already suggested that question is not before us.

Judgment affirmed.

(Opinion published 53 N. W. Rep. 1023.)