Itasca Lumber Co. v. Johnson ( 1917 )

Per Curiam.

This is a proceeding under the Torrens act to register land in Itasca county. There were findings for the plaintiff. The defendant appeals from the order denying his motion for a new trial.

On July 25, 1891, Allie M. Johnson was the owner of the land. At that time he mortgaged it to Michael McAlpine. On March 11, 1892, he gave the timber deed with full covenants to John W. Johnson. This deed gave the right to cut and remove the timber within ten years, and until the expiration of such period the grantee was to pay the taxes. McAlpine foreclosed and bid in on September 28, 1892. On May 23, 1893, John W. Johnson purchased the interest acquired on foreclosure. There was no redemption. The plaintiff, Itasca Lumber Company, claims through John "W. Johnson. It is not shown that it or any of its grantors was a tona fide purchaser. Allie M. Johnson claims that, when he gave the timber deed to J. W. Johnson, the latter agreed as a part of the consideration of it to pay the McAlpine mortgage; that his subsequent purchase of the interest acquired on foreclosure therefore operates as payment; and that since the plaintiff is not shown to be a purchaser for value and without notice its title is no better than that of J. W. Johnson. The basis of the defendant’s claim is that J. W. Johnson assumed and agreed to pay the McAlpine mortgage. The court found that he did not. The defendant testified to such agreement, and his testimony was not directly contradicted. He paid no taxes at any time after the execution of the deed. For a number of years, at least for six or eight, he knew that J. W. Johnson had sold the land. He made no inquiry and did nothing about his present claim for over 20 years. His conduct was inconsistent with his present claim. The burden of proof was upon him. Upon the whole we cannot say that the finding is not supported. The evidence was such as amply to sustain a finding that an assumption agreement was made. The finding is not so palpably against the evidence that there should be a reversal. Reaching this conclusion we do not enter upon an inquiry whether, in view of the warranties in the timber deed, Allie M. Johnson could show by parol that John W. Johnson assumed the mortgage.

In the timber deed J. "W. Johnson agreed to pay the taxes and turn the land back to Allie M. Johnson at the expiration of the term". There was nothing in this agreement to prevent J. W. Johnson acquiring title through the McAlpine mortgage against which Allie M. Johnson had covenanted.

Order affirmed.