Hostetter v. Alexander

Berry, J. This appeal was taken within six months “ after the entry ” of the judgment appealed from. It was, therefore, in time. Laws 1869, ch. 70s; Humphrey v. Havens, 9 Minn. 318. The principal question presented by this case was examined and considered in Johnson v. Carpenter, 7 Minn. 176. It was there determined that “ where a debt is secured by a [561] mortgage, and also by a negotiable promissory note, tbe mortgage is a chose in action as between tbe mortgagor and any subsequent assignee, and is taken subject to tbe state of accounts between tbe mortgagor and mortgagee at tbe time of tbe assignment; ” and, in effect, that tbe privileged character of tbe note as negotiable paper does not extend to tbe mortgage by which it is secured, but that tbe mortgage is exposed to tbe same defences in tbe hands of an . assignee as in tbe bands of tbe mortgagee. If this was not tbe only ground upon which tbe decision in Johnson v. Carpenter was based, it is evident that it was tbe ground which received most consideration in that case from tbe court and counsel, and upon which tbe court mainly relied. Notwithstanding tbe doubt which may be thrown around tbe original soundness of Johnson v. Carpenter by tbe comparatively recent case of Carpenter v. Longan, 16 Wall. 271, and tbe considerations there suggested, we are not disposed to disregard or overrale a decision of our own court so distinctly made. It follows that, in our opinion, tbe court below erred in declining to pass upon tbe issue as to tbe want or failure of tbe consideration of tbe notes and mortgage involved in tbe action. Judgment reversed.