Nichols v. Randall

5 Minn. 304 | Minn. | 1861

By the Court

Emmett, O. J.

'There were separate demurrers to the complaint in this case — one interposed by Ean-dall and Morton, the other by Levering. The demurrers were severally sustained by the Court below, and the Plaintiff appealed from the decision in each case, thus presenting two cases for consideration, but as they do not essentially differ, we will consider them together.

It appears from the complaint that Eandall and Morton made their joint and several promissory note for $1,600, payable to the order of Morton. That Morton endorsed the same and negotiated it with Eoss in his life time, through the agency of Levering. That after the note became due, Levering still acting as the agent of Morton, and also as Eoss’ agent and in order to obtain from Eoss a further loan of money for the use of Morton, and to secure to Eoss the payment of the sum mentioned in the note, executed and delivered to him, Eoss, a deed of quit claim, of certain real estate belonging to him, and situated in the County of Eamsey. That said deed although absolute on its face was to operate as a mortgage only. That Levering having acted as the agent of Ross in the loaning and securing of said money, Ross about the same time, or shortly afterwards, made out a quit claim deed of the same property back to him, and placed the same in Levering’s hands, as his, Ross’ agent, for safe keeping only, and with the distinct understanding that it was not to be considered as delivered, or to have any operation or effect, or be recorded, until the note before mentioned should be fully paid and discharged.

The complaint further shows the decease of Ross, and the appointment of the Plaintiff as his Administrator, and that the note is still unpaid. It also avers that there is danger that Levering will record or make an improper use of said last mentioned deed, or convey away the property to the injury of the estate of said Ross; and asks a judgment against the makers of the note for the amount due thereon, and that the mortgaged premises may be sold and the proceeds applied in satisfaction of the amount due on the note, and if insufficient to pay the sanie, that Randall and Morton be adjudged to pay the balance ; and that Levering be decreed to surrender to the Plaintiff to be cancelled, the deed from Ross to him.

Randall and Morton demur, on the ground of a misjoin-der of parties Defendant, in joining them in the same action with Levering, aud also for improperly uniting several causes of action, in this, to wit; by seeking to recover against the makers of a pi*omissory note, and also to foreclose a mortgage and cancel a deed as against another party.

The demurrer of Levering is upon the same grounds with an additional cause which will be hereafter noted.

The District Court as appears by the decisions on file, sustained both demurrers on the single ground that several causes of action were improperly united.

We have been forced to a different conclusion. The statute, (Sec. 11, page 671, Com. Stat.) expressly provides that if the mortgaged debt be secured by the obligation, or other evidence of debt, of any person other than the mortgagor, the complainant may make such other person a party to the bill; and the Court may decree payment of the balance of such debt remaining unsatisfied after a sale of the premises, as well against such other person, as the mortgagor, and may enforce such decree as in other cases.”

This is in our opinion conclusive, not only as to the right of the Plaintiff to join in this action the mortgagor, with the makers of the note, but to demand and have the relief due from each. We can hardly conceive of a case more directly within the language and spirit of the statute. So far at least as he asks for a sale of the mortgaged property and a decree for any unsatisfied balance, against the makers of the obligation by which the mortgage debt is secured. But it is urged, this complaint goes farther and includes still another cause of action, in that it asks for the canceling of a deed, with which the makers of the note have not the remotest connection.

This we think can make no material difference. If the makers of the note, and the mortgagor are properly joined, for one purpose, the Court in the exercise of its chancery powers, having jurisdiction of the parties, can make that jurisdiction effectual for the purpose of complete relief, and to that end may, on a proper showing, compel either of the defendants to deliver up to be canceled, any deed or other instrument in his possession relating to the mortgaged premises, which is improperly held by him, or which might be used to the prejudice of the rights of the Plaintiff. I do not think, however that the right of the Plaintiff to have the deed from Boss to Levering delivered up to be canceled, depends alone upon the fact that Levering is already a proper party to the action, as mortgagor. The mortgagee in an action to foreclose his mortgage, may make any one a party Defendant, who has or claims to have, through the mortgagor, any interest in the mortgaged premises, and the mere fact that the relief asked against him is different from that asked against the mortgagor or other Defendant can make no difference.

We hold therefore, for reasons above stated that the demurrer of Bandall and Morton ought not to have been sustained ; and we might add, in reference to the first ground alleged, that this Court has already held that a misjoinder of parties Defendant is an objection that cannot be taken by demurrer. Lewis et al vs Williams & Sons, 3 Minn. 151.

Levering however, in addition to the grounds urged by Randall and Morton, insists that the complaint does not state facts sufficient to constitute a cause of action as against him, because, as he alleges, it shows upon its face not only that he executed. the mortgage without consideration, but also that he was the owner of the mortgaged property at the commencement of the action, by virtue of the alleged reconveyance by Ross.

¥e think this ground is equally untenable. If the mortgage itself does not import a consideration sufficient to support it, enough is found in the allegation “ that it was given by Levering, in order to obtain a further loan of money from Ross for the use of Morton, and to secure the money due on the Randall and Morton note.” And the allegation that the deed of re-conveyance was never in fact delivered to Levering, but merely placed in his hands for safe keeping as the agent of Ross, to our mind, fully disposes of the objection that the complaint shows title in Levering. If there was no delivery the conveyance was incomplete, and the deed in contemplation of law is in Ross’ possession so long as it remains in the hands of his agent.