81 Minn. 263 | Minn. | 1900
Defendant Hausberg was, on April 2, 1897, the owner of the mill property described in the complaint. On that day he entered into a contract with defendant Ward whereby the premises were sold to Ward for the sum of $6,000, to be paid for in the manner following: Ward to pay cash $2,000; Hausberg and wife to execute to the Martin County Bank their notes in the sum of $4,000, and a mortgage upon the premises to secure the same; the property then to be conveyed to Ward by Hausberg and wife, subject to the mortgage; and the bank then to assign the notes and mortgage to Hausberg. • The agreement was carried out, and after the mortgage and notes were assigned to Hausberg he assigned them to plaintiff.
This action was brought by plaintiff against the Hausbergs and Wards to foreclose the mortgage, there having been default in payment. Defendant Hausberg did not appear in the action, and was
Hausberg was not subject to cross-examination as a party to the action adverse to defendant Ward. Suter v. Page, 64 Minn. 444, 67 N. W. 67. He was not called as a party to the action, but as one for whose benefit the action was prosecuted. It appeared from the issue before the court, and the admission of plaintiff, that he was the owner of the notes and mortgage, subject only to the plaintiff’s security to the extent of $2,000. Having sold the premises for $6,000, and transferred a mortgage thereon for $4,000 as collateral security for $2,000, his interest in the security and the foreclosure was at least equal to that of the plaintiff. It does not appear when the $2,000 loan matured, nor what the conditions were as to its payment; but Hausberg could be immediately benefited by the foreclosure proceedings by paying off the $2,000 loan, and taking an assignment of the sheriff’s certificate. He was, therefore, a party immediately benefited, within the meaning of the statute.
There are many assignments of error calling in question the rulings of the court upon the question of the condition of the mill at times subsequent to the sale, the various changes that had been
Order reversed, and a new trial granted.
LOVELY, J., did not sit.