Lang v. Ferrant , 55 Minn. 415 ( 1893 )

Gtlfillan, C. J.

On June 30, 1882, plaintiff conveyed to defendant, Emil Ferrant, a lot in Minneapolis, subject to a mortgage previously executed by plaintiff to secure notes made by him, which the grantee assumed and agreed to pay as part of the consideration for the conveyance.

Of course, as a basis for the right of subrogation to the lien of the mortgagee, to establish which, and to enforce the mortgage, this action is brought, it must be shown that plaintiff paid the mortgage. The court below found as a fact that he did not pay the mortgage. If he did not, it is immaterial who did, and immaterial that the court cannot find from the evidence who did.

If that finding is sustained, it is the end of the case. On the trial the plaintiff testified that he paid the mortgage, and there was no direct testimony contradicting him. “But, although there is no direct evidence contradicting the testimony of witnesses, the jury are not bound to accept it as true, where it contains inherent improbabilities or contradictions, which, alone, or in connection with other circumstances in evidence, furnish a reasonable ground for concluding that the testimony is not true.” Hawkins v. Sauby, 48 Minn. 69, (50 N. W. 1015.)

Plaintiff’s statement of the fact of payment, and how he came to make it, has an air of improbability; and taken in connection with his conduct subsequent to the alleged date of payment, — especially the fact that for nine years after that time, and until those who would be likely to know bow the fact was, were all dead, be never suggested a claim on account of it to any one against whom payment would give bim a claim, and that no reasonable explanation for the delay and silence was attempted by bim, — it seems almost incredible.

(Opinion published 57 N. W. Hep. 140.)

The finding of the court was justified by the evidence. Order affirmed.