214 N.W. 467 | Minn. | 1927
The one finding of fact is that the allegations of the complaint are true. Compare War Finance Corp. v. Erickson, supra, page 276. The case so made is that in April, 1920, plaintiff loaned the husband $4,500 upon the faith of his oral representation, made fraudulently *432 for the purpose of inducing the loan, that if plaintiff would advance him the said sum he would use it for the purchase of a certain residence property and would secure payment by the note of both defendants and "a first mortgage on the said premises." Defendants acquired the property, now their homestead, with the money loaned by plaintiff, but refused the promised mortgage. The loan was in fact first evidenced by the promissory notes of the husband alone. In default of payment, plaintiff procured against him the judgments in question, into which the notes are now merged. This appeal challenges a decree making those judgments a lien upon the homestead of defendants and providing for foreclosure.
1. The sole question is whether the facts that the loan was induced by the fraudulent promise of the mortgage and that its proceeds were actually used to purchase the property justify the imposition of the lien. The first obstacle to it is in G.S. 1923, § 8336, which exempts homesteads "from seizure or sale under legal process on account of any debt not lawfully charged thereon in writing, except such as are incurred for work or materials furnished in the construction, repair, or improvement of such homestead, or for services performed by laborers or servants." That statute bars the lien here sought unless it can be sustained under some principle of equity not affected by the statute. True, in Hughes v. Mullaney,
Another asserted obstacle to the lien is that it rests solely upon an oral promise to execute and deliver in the future a mortgage upon land. Such a promise has been held one for the transfer or creation of an interest in real property within the statute of frauds. G.S. 1923, § 8459. See Sleeth v. Sampson,
2. The argument that the homestead exemption statute is not in derogation of the lien-creating power of equity is correct. For example, the fact that land is a homestead does not prevent its being subjected to a trust ex maleficio. See American Ry. Exp. Co. v. Houle,
Lindell v. Lindell,
Judgment reversed.