248 N.W. 667 | Minn. | 1933
The case involves an apartment house property in Minneapolis, of which plaintiffs are owners. Appellant as assignee holds a first mortgage thereon, negotiated and made effective as a lien about December 2, 1930. The original principal debt was $45,000. It was payable in semi-annual instalments of $1,350 each until the principal should be reduced to $19,350, which was not to mature until March 1, 1941. There remains unpaid $42,300. For an unpaid instalment appellant has foreclosed by advertisement. Under the statute hereinafter considered, the foreclosure sale was made expressly "subject to the remaining amount then unpaid and secured by said mortgage." At the time of the sale upwards of $1,700 of unpaid and delinquent taxes were a lien to which the foreclosure sale was subject.
The mortgage expressly assigned to the mortgagee as part of the security the rents of the property. From that provision arises the sole issue in this action, the purpose of which is to enjoin the defendants from collecting or attempting to collect the rents during the period allowed for redemption. So far no redemption appears to have been made. The foreclosure sale was had May 18, 1932. *100
Plaintiffs take position on 2 Mason Minn. St. 1927, § 9572, reading that "a mortgage of real property is not to be deemed a conveyance, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure." That section has been often construed in some of the cases hereinafter mentioned and many others. In our judgment, another and later statute is fatal to plaintiffs' claim. It is L. 1925, p. 351, c. 280, 2 Mason Minn. St. 1927, § 9610:
"Where a mortgage is given to secure the payment of money by installments, each installment either for principal or interest or both, as is due at any time, may be taken and deemed to be a separate and independent mortgage and such mortgage for each such installment may be foreclosed by advertisement or by action, in the same manner and with like effect as if a separate mortgage were given for each of such installments, and such foreclosure may be made and sale had subject to the installments yet to become due upon the mortgage; and a redemption from any such sale shall have the like effect as if the sale for such installment had been made upon an independent subsequent mortgage."
By Fidelity-Philadelphia Tr. Co. v. West,
As far as now relevant, decisions such as Fowler v. Johnson,
The order appealed from must be reversed with directions to amend the conclusions of law and order for judgment in accordance with the views above expressed and to enter judgment for appellant.
So ordered.