Deiber v. Loehr ( 1890 )

Vanderburgh, J.

The question here presented is whether the mortgage executed by the defendant Loehr to the defendant land company has a legal priority over that executed by him to the plaintiff. The latter was first executed, but the former was first recorded.

1. The answer alleges that the defendant Loehr, the owner of the land in controversy, executed a note for $1,600 to the land company, and to secure the same executed the mortgage mentioned therein; and that when it was recorded the latter had no knowledge or notice of the plaintiff’s mortgage. It is not, however, alleged that the money which the note and mortgage were given to secure was in fact paid over before notice of plaintiff’s mortgage; and it is assigned as error that, upon the pleadings and findings, judgment was erroneously ordered for the defendant company. But, in respect to the loan made by the . latter, the plaintiff’s reply admits or assumes that it was in fact made at the date of the mortgage, but states, in substance, that the latter was made as collateral security for another mortgage of the same date, given to secure the note for $1,600, which mortgage was a first lien and “ample security for said loan.” There is no case or bill of exceptions, and the proceedings upon the trial are not before us, so that, if the findings of fact are sufficient, it may be presumed that there was evidence before the court received by consent to support the same; and it is too late to raise the objection to the defective pleading. Baker v. Byerly, 40 Minn. 489, (42 N. W. Rep. 395;) Warner v. Foote, 40 Minn. 176, (41 N. W. Rep. 935.)

2. Upon the point raised in respect to the sufficiency of the findings, we think sufficient appears therein to show that the note and mortgage in question were given for money actually loaned to the amount expressed in the note, — $1,600,—and that plaintiff was in fact cognizant of the transaction, and received a part of the money so loaned. It is also expressly found that the land company bad no notice of plaintiff’s mortgage at the time of the loan or the execution of its mortgage, nor until a long time thereafter. The two mortgages were executed and recorded the same day,-but the mortgage to the defendant company was first recorded. The findings are sufficient to sustain the judgment.

Judgment affirmed.