Cleveland v. Stone , 51 Minn. 274 ( 1892 )

Gileillan, G. J.

Action to cancel, as usurious, a mortgage upon real estate, and the foreclosure thereof under the power; in other words, to clear off a cloud on plaintiff’s title. It is the first requisite in such an action that the instrument or record complained of shall be a cloud on the plaintiff’s title. If it be not, its existence will not concern him. This complaint does not show this. It alleges that the mortgagor was the owner when he executed the mortgage, and that plaintiff afterwards became, and is now, the owner, without stating from whom or how he derives his title. It does not follow from that allegation that it is affected by the mortgage, for he may have acquired it in any one of many ways, other than through a conveyance by the mortgagor. Thus the mortgagor’s title may have been defeated by forfeiture, and the plaintiff got title from the one to whom the land reverted; or it may have been uprooted by a tax sale; or it may have passed free of the mortgage, by sale under a prior mortgage, or judgment, or by adverse possession ripening into' title. It must be alleged or shown that he got title through the mortgagor, so as to be affected by the mortgage. We do not mean to be understood that in his pleading he must trace the title, step by step, from the mortgagor to himself. As a matter of pleading it would be enough to allege that since the execution of the mortgage he succeeded to, and now holds, the title which the mortgagor, at that time had.

Order affirmed.

(Opinion published 53 N. W. Rep. 647.)