120 Minn. 435 | Minn. | 1913
Action to set aside and discharge of record an assignment of a real estate mortgage, in which, at the close of the trial below, an order of dismissal for the failure of plaintiff to establish a cause of action was entered, and plaintiffs appealed from an order denying a new' trial.
It appears that John Wellendorf was in his lifetime the owner of a real estate mortgage securing the payment of $900, which was duly recorded in the office of the register of deeds. By an instrument in writing he assigned the mortgage to defendant, his wife, and the assignment was, after the death of Wellendorf, duly recorded. Defendant was the second wife of Wellendorf, and plaintiff William Wellendorf is a son of the first marriage, and the sole surviving heir of his father’s estate. Wellendorf and defendant were duly married some time in the year 1901, and thereafter continued to reside together as husband and wife until the time of his death, which occurred on June 25, 1911. He was at that time 81 years of age. He executed the assignment of the mortgage on March 2, 1911. The complaint alleges the execution of the instrument, the record thereof after the death of Wellendorf, and charges that the execution thereof was obtained by fraud and undue influence, and by taking advantage of the enfeebled mental and physical condition of Wellendorf. The answer put these allegations in issue.
Plaintiffs offered in evidence on the trial the record of the mortgage, the assignment thereof to defendant, and the record of an antenuptial contract between Wellendorf and defendant, entered into prior to and in consideration of the marriage; also notice of lis pendens in the action. Defendant was then called for cross-examination, and the fact of, and circumstances surrounding, the execution of the assignment of the mortgage, were brought out. Defendant testified that she took the mortgage to a banker in the village of
In this situation of the pleadings and evidence it is clear that a cause of action was not established, and the trial court rightly dismissed the action. The contention that the evidence would sustain a finding .that the assignment was not executed by Wellendorf is not sustained. While it is true that it was not acknowledged by him in the manner required by law to entitle it to record, as between the parties such acknowledgment was not essential to the validity of the instrument as an assignment of the mortgage (1 Dunnell, Minn. Dig. 15; Roberts v. Nelson, 65 Minn. 240, 68 N. W. 14), though to entitle it to record a proper acknowledgment was necessary. And it was valid, though not recorded until after the death of Wellendorf. Collup v. Smith, 89 Va. 258, 15 S. E. 584. An heir or legatee does not come within the recording act as a bone fide purchaser.
The further contentions that there was no delivery of the assignment, or valuable consideration paid therefor, are not sustained. The question of delivery was not an issue under the complaint, and
' Our conclusions, therefore, are in harmony with those of the learned trial court, and the order appealed from is affirmed.