Heyderstadt v. Whalen , 54 Minn. 199 ( 1893 )

Mitchell, J.

This was an action to foreclose an equitable mort- • gage on eighty acres of land owned, or formerly owned, by the defendant Whalen. The substance of the defense was that the land was, at the date of the mortgage, Whalen’s homestead, and that his wife did not join in its execution. The assignments of error go to tbe sufficiency of the evidence to justify the findings, the main point made being that it did not justify the finding that the mortgage was for the purchase money of the land. The land was school land which the state had sold on the usual long credit, one Diers being the owner and holder of the certificate of purchase. Diers sold the land to Whalen for $500 cash, and $1,000 on time, retaining the certificate and equitable title as security for the unpaid purchase money. Subsequently, Whalen borrowed $1,000 of plaintiff, whereupon Diers, upon being paid in full, with the consent and at the instance of Whalen, transferred and assigned the certificate, and all his interest in the land, to plaintiff, to be by him held as security for the $1,000 thus loaned to Whalen. This is the basis of plaintiff’s lien. Thus far there is no dispute about the facts. Defendants’ claim is that there was no evidence that plaintiff loaned the $1,000 to pay the purchase money to Diers, or that it was used for that purpose; their contention being that it appears that Wha-len was then owing Diers not to exceed $400, and that not more than that amount of the money was páid to Diers. The evidence on this point is somewhat obscure and indefinite, but we are of the opinion that it is sufficient to justify a finding that Whalen was still owing Diers $1,000, and that the whole of the money advanced or loaned by plaintiff was applied in liquidation of that debt. It does appear that Whalen had executed to Diers a mortgage on another tract of land to secure $400 of the purchase money of the first-mentioned tract, (which was satisfied at the time of the loan by plaintiff,) but we think it is fairly inferable from the evidence that this was merely additional security for part of the $1,000. Of course the rights of' Whalen in the land were subject to Diers’ claim for purchase money, and it needs no argument to show that if plaintiff advanced or loaned the money to pay Diers, and as security therefor took from him an assignment and transfer of the certificate of purchase of the land, this was not the creation of any new lien, but that plaintiff' merely stepped into Diers’ shoes. This is the only point that we can discover in the case, worthy of special notice.

(Opinion published 55 N. W. Rep. 958.)

Judgment affirmed.