43 Minn. 283 | Minn. | 1890
So far as necessary to the decision of this case, the facts are, in brief, these: March 19, 1884, the defendant August Sallberg and one Lichtenauer were the owners of certain real estate, and executed a mortgage thereon to Gustav Willius to secure
The defendant Branhan at first demurred to the complaint on the grounds that it does not state facts sufficient to constitute a cause of action, ánd that there is a defect of parties defendant, in that Johnson and the National German-American Bank should have been joined as defendants. The demurrer was overruled, and Branhan answered. Passing the point made by respondent, that, by answering, the appellant waived his right to complain of the decision on his demurrer, we do not see any basis for the suggestion that either the bank or Johnson ought to have been made a party defendant. As to the bank, it appears, both by the complaint and the findings of fact, that the notes and mortgage were executed to Willius to secure an indebtedness due to the bank, and also an indebtedness due to another firm, and when collected Willius was to pay the amount, collected upon such indebtedness. The most that can be claimed upon this is that Willius was trustee for the bank and the other firm, and that first Johnson, and then Branhan, upon receiving an assignment of the notes and mortgage, became trustee. The cestui que trust may
The point is made by appellant that, although the notes and mortgage had been paid, the latter, not being satisfied of record, is good as to Branhan, a purchaser for value and without notice. How he could be a bona fide purchaser after the notes, by their terms, were past due, it is hard to see. But conceding that he might be, the point’is fully covered by the decision in Johnson v. Carpenter, 7 Minn. 120, (176,) followed in Hostetter v. Alexander, 22 Minn. 559, in which it was held that a mortgage is “a mere chose in action as between the mortgagor and any subsequent assignee, and is taken subject to the state of accounts between the mortgagor and mortgagee at the time of the assignment.” As between the mortgagor and an assignee of the mortgage, the record of the assignment does not affect the rights of the former as they existed between him and the mortgagee at the date of the assignment; and it was decided in those cases that this was so, even where the assignee took as indorsee the notes secured by the mortgage, free from all equities between the maker and payee. The decisions in Palmer v. Bates, 22 Minn. 532, and Merchant v. Woods, 27 Minn. 396, (7 N. W. Rep. 826,) were based on the proposition that where a mortgagor has given to the mortgagee a power of sale in the mortgage, and permits him to exercise it, although the mortgage has been paid or released, of which he gives no notice by
The doctrine was at one time that no one could maintain an action to clear a cloud upon the title to real estate but the owner of the legal title in possession, and this rule is laid down in Frost v. Spitley, 121 U. S. 552, (7 Sup. Ct. Rep. 1129.) But the. weight of modern authorities is that possession is not necessary. This court so held in Donnelly v. Simonton, 7 Minn. 110, (167.) Appellant claims that this is strictly an action to remove a cloud, and that such an action can be maintained only by the.legal owner. We will not say there may not be actions of that character which only one having the legal title can bring. But the proposition stated as a general rule applicable to all actions in the nature of bills quia timet, whether their object be to cancel instruments which are void or become functus officio, or to clear off a cloud created in any other way, is not only not sustainable upon authority, but is not supported by the reason which lies at the basis of such actions. That reason is that the party has no adequate remedy at law, and that to require him to await the action of the party claiming under the instrument or other matter constituting a cloud» until perhaps his evidence and ability to defend against it is lost by lapse, of time, would, in. many cases, be to deny him any remedy. The reason is as forcible in the case of one having only an equitable estate, or merely a lien, as in that of the legal owner. It has been held that the action may be maintained by a mortgagee in possession,
Judgment affirmed.