5 Minn. 508 | Minn. | 1861
By the Court
These are actions by different mortgagees to foreclose separate mortgages given by Fuller at different times, and embracing in the main tbe same property. In each case tbe mortgagor, and all incumbran-cers of record, other than plaintiffs, are made defendants. In tbe action in which Hayes is Plaintiff, and which was first commenced, Whittacre and Starbuck interpose their equities and claim by way of answer, and in that afterwards commenced by Whittacre and Starbuck, Hayes sets up her equities in the same manner. The equities and claims of the Defendant, Emmett, who claims as the successor in interest of the mortgagor, and also as purchaser under a judgment against Fuller, are also interposed by answer in each action. The whole merits of the controversy are therefore before the Court in either case. The two cases were referred to a special referee to take the testimony and report the facts, and the report in both cases was the same, and the cases were tried in the Opurt below, and argued in this Court upon the same state of facts and same record. Both cases may, therefore, properly be considered together, as a decision upon the issues raised in one, must necessarily determine those of the other. As the papers in the case of Whittacre and Starbuck vs. Ful
That on the twenty-fifth day of May, 1854, Alpheus Gr. Puller made and executed his promissory note to the Plaintiffs for the sum of three thousand dollars, due in twelve months from date with interest at the rate of two-and-a-half per cent, per month, payable semi-annually. That on the same day, to secure said note, Fuller and wife executed and delivered to the Plaintiffs (Whittacre and Starbuck,) a mortgage upon lots nine and ten, in block fifty-one, in Rice & Irvine’s addition to the town of Saint Paul, which mortgage was duly recorded. That said conveyance was conditioned for the payment by said Fuller to the parties of the second part named in said mortgage, of the sum of three thousand dollars, with the interest thereon, according to the conditions of his promissory note, bearing even date with said mortgage.
That on the 13th day of February, 1856, in consideration of the extension of time on said note for one yeax*, the said Fuller agreed to keep the interest then due, for one year, at thi’ee per cent, per month, interest payable quarterly, and to pay interest on the piincjpal quarterly, instead of semi-annually, and if not paid when due, to pay five per cent, per month till paid, which agreement was endorsed in writing on the back of the note, expressing the consideration, and signed by the Defendant, Fuller.
That there was paid upon said note, in part payment thereof, the sum of $967.50-100, May 25th, 1855, and the sum of $225, August 28th, 1855. That the payment of May 25th, 1855, was the first payment on the note, and that $900 thereof was interest on the principal, and the $67 was interest on the first semi-annual instalment due on the note, and that the payment of $225, on the 28th day of August, 1855, was paid as interest, and calculated at the rate of two-and-a-half per cent, per month. There was also a payment on the 13th of May, 1856, of $264, paid as interest as follows : On the 13th of February, 1856, there was a balance due of $433, upon
That on the 16th of November, 1857, Whitacre and Star-buck paid the sum of $64.40-100, which had been assessed upon the premises as taxes.
That on the 5th day of November, 1856, the said Alpheus G. Puller and wife executed and delivered to Plaintiffs, a mortgage on the same premises, to secure his note to them of that date for the sum of $1,694.88, which mortgage was recorded July 28th, 1857.
That on the 24th day of October, 1855, the said Fuller made a promissory note in favor of Harriet S. Hayes for the sum. of $1,300, with interest after maturity at five per cent, per month, due one year after date, and on the same day executed a mortgage, to secure said note, on the wept part of said lots nine and ten, and certain other property, which mortgage was recorded November third, 1855. That fifty dollars was paid on said note at the maturity thereof.
That on the 6th day of April, 1857, 'William L. Banning and Wm. Bucknell, by the firm name of Wm. L. Banning & Co., recovered a judgment against Alpheus G. Puller (with others,) for the sum of $3,156,85, which judgment was founded upon an indebtedness which had accrued to them prior to the 28th day of July, 1856, and was, on the date thereof, duly docketed in the county of Ramsey.
That on the 19th day of September, 1857, the premises mortgaged were sold on execution issued on said judgment, and purchased by Banning & Co., and the Sheriff’s certificate delivered to Banning & Co., and also filed with the Register of Deeds.
That on the 30th day of April, 1858, Alpheus G. Fuller sold the premises to Joseph E. Gay, and on the 15th day of July, 1858, the said Gay sold and transferred the pu-emises to Lafayette Emmett, who entered into possession of the same October 1, 1858, and has ever since continued in possession.
That there was nothing in the mortgage first above described, or in the record thereof, to show that it drew any greater rate of interest than seven per cent, per annum. And the same finding in regard to the mortgage secondly above described. That Banning & Co., at the time of their purchase on the judgment, had no other notice of the said mortgages, nor of the rates of interest in the notes secured by the same than that conveyed by the record.
That the agreement endorsed upon the back of the note, was made without the knowledge or -consent of, and without any notice to any of the parties to this action, except the Plaintiffs, and Defendant Puller, and no record was made of the same.
That the sum of $261, paid on the 5th day of November, 1856, was included in and formed part of the consideration of the said second note for $1,694.88, and that said note was given for arrears of interest, claimed to be due up to November 5th, 1856, and that no part of said note has been paid.
That the delay in recording the mortgage securing said note was unreasonable, and that said Defendants, Hayes and Banning, and their successors in interest, had no notice of the existence of said mortgage, until the same was recorded, and that the same is a lien upon the same premises covered by the mortgage to Whitacre and Star-buck.
The decree entered upon this report adjudged that there was due the Plaintiffs, from Fuller, the sum of $7,010.34, and that the mortgage for $1,699.88 is not a lien on' the premises therein described or any part thereof, as against the lien or
That the mortgage first described is a lien on the premises described in the complaint, as against the Defendants, Hayes and Emmett, for the amount remaining due thereon, after computing interest on $3,000, at the rate of two-and-a-half per cent, per month, from its date to the maturity thereof, and after maturity at the rate of seven per cent, per annum, deducting from the principal and interest so made the payments by Defendant, Puller, mentioned in the . referee’s report, at the several' times when the same were made, the amount now appearing to be due upon such computation, being $2,844.80. That the Plaintiffs have a lien against all the Defendants for $64.40, amount of taxes paid by them, and interest on same.
The decree then provided for a sale of the premises, and that all parties be barred and foreclosed from all equity of redemption, &c.
All parties appear to have been dissatisfied with this decree, and appeal to this Court to have the same reformed, and their rights adjusted according to the equities of the case.
The mortgage of $3,000 by Puller to Plaintiffs, of May 25th, 1854, is the first incumbrance upon the premises which the papers disclose, and of course takes precedence of the others to the amount specified in the record. As between the original parties to this mortgage, it is a lien upon the premises to the amount due upon the note which it secures, according to the legal amount of interest secured by said note. But subsequent incumbrancers are bound by nothing more than the record discloses, (unless express notice be proved,) and as the record makes no mention of the rate of interest specified in the note, as to the second mortgagee, the same must be computed at the'rate of seven per cent, per annum. Frost v. Beekman, 1 John Ch., c. 300; Shawbhut v. Parrott & Thompson, ante p. 323. So far at least as Mrs. Hayes is concerned she has the right to insist that the lien of the mortgage shall be no greater than the record discloses, as she appears to be a bona fide purchaser for a valuable consideration, and we are not to presume she would have risked her money upon the property,
The next transaction between the parties to the original mortgage, which is assailed by subsequent incumbrancers, is the extension of time on the $3,000 note. It is claimed by Mrs. Hayes and L. Emmett, that this extension of time discharged the mortgage. We do not think this position tenable. Seo. 31, p. 301 Comp. Stat. provides how a mortgage shall be discharged, which Statute was in force at the time of the transaction referred to. There is no claim that the mortgage was discharged in the manner provided by Statute, nor by the execution of any instrument of as solemn and binding a character as the mortgage itself. There having been no legal discharge of the mortgage, if any is claimed it must be based upon superior equity cf the subsequent incumbrancers over
The amount of - $64.40, paid by Plaintiffs as taxes, is undisputed, and is a prior lien in favor of the Plaintiffs upon the premises for that amount and interest.
The next incumbrance in order of date, is the second mortgage of Puller to the Plaintiffs for $1,694.88, date of November 5th, 1856. The consideration of this mortgage, as found by the referee, was for arrears of interest on the $3,000 mortgage, and it was recorded July 28th, 1857. In what manner, or at what rate the interest was computed to produce this
There is also another reason why this mortgage should not be held as a prior lien to the judgment on these premises. Previous to the Statute of 1858, a bona fide purchaser for a valuable consideration, previous to the docketing of a judgment, was'preferred to the lien of the judgment, even though his deed or mortgage was not recorded. But as against all other unrecorded conveyances, the lien of the judgment attaches from the time of docketing thereof. In Stuart vs. Kissam, 2 Barb. 493, it was held that a party taking a conveyance of real estate in payment of a precedent debt, was
We think the Defendant Emmett occupies the same position as Mrs. Hayes with reference to the application of the payments made by Fuller on this mortgage. That is, he appears from the record to be a tona fide purchaser for a valuable consideration, holding not only under the title by Sheriff’s deed on the Banning judgment, but also by deed from Fuller’s grantee. Were his title limited to that acquired
The decree which was entered upon the report of the referee barred and-foreclosed the Defendants, and all persons claiming under them, from all equity of redemption. This part of the decree is erroneous, as under the act of March 10, 1860, the Defendants are entitled to three years after the sale within which to redeem the premises. Bassett vs. Stone, 4 Min. 298; Heyward vs. Judd, 4 Min. 483.
As between the Defendants Hayes and Emmett, the latter is entitled to insist that Mrs. Hayes shall make the amount due her out of property, so far as the- same is sufficient for that purpose, not covered by Plaintiff’s mortgage; or, if she redeems from Plaintiffs without foreclosing her mortgage, the Defendant Emmett is entitled to be subrogated to her rights in her mortgage upon satisfying the amount due by the terms thereof. 1 Hilliard on Mort. 308; 1 Story’s Eq. Jur., sec. 633.
As a matter of equity the parties in interest have a right to insist that the property shall not be consumed by unnecessary costs and expenses. One sale is sufficient for all purposes, and the proceeds thereof should be applied to extinguish the liens to the extent and in the order herein above determined.
We shall therefore refer this case to the Clerk of this Court (unless the parties to the, actions stipulate in writing to refer to some other person within ten days after notice of filing hereof,) to ascertain and report the amount due the mortgagees
Note. — The Chief Justice having boen a party in tho action took no part in the decision.