Bausman v. Eads

Gilfillan, C. J. On one of the lines of defence presented by the defendants in this case, to wit, that based on the mortgage from Moore to Hall, and the title derived through the foreclosure of that mortgage, the facts found by the court below are practically identical with those on which this court decided the case of Bausman v. Faue, 45 Minn. 412, (48 N. W. Rep. 13.) The plaintiffs assign as error that the evidence does not sustain the findings of 'fact that it was agreed between Bausman and Britton and French that the latter might purchase the Hall mortgage, and that he did purchase it;, and they insist the evidence shows the agreement to have been that, with money of Bausman and Britton retained in his hands, French should pay the mortgage, and that he did pay, but did not purchase it. If the facts were as plaintiffs claim, it would make no difference with the result. Those facts would introduce into the case the feature upon which Merchant v. Woods, 27 Minn. 396, (7 N. W. Rep. 826,) was decided. In that case the mortgage had been paid, so that, as between mortgagor and mortgagee, it was extinguished, and there could be no right to foreclose, but it had not been discharged of record. The court held that when a mortgage containing a power of sale has been in fact discharged, it is the duty of the mortgagor or owner of the equity of redemption, as between him and third parties having no notice thereof, to procure the evidence of the discharge to be properly put upon record; that a failure so to do leaves the mortgagee apparently still clothed with power to foreclose; and that, upon a foreclosure under such apparent authority, an innocent purchaser, if his evidence of title be first recorded, will be protected. The mortgagor or owner of the equity of redemption cannot rest on the fact that the mortgage has been paid and the power to foreclose extinguished, cannot assume that no attempt will be made to exercise the power, if he permits it to appear by the record to be in full force. ' As between him and innocent purchasers for value under the power, he will be bound by the record. If the facts were as plaintiffs [155] claim, they would not tend to relieve the owners of the equity of redemption from the charge of negligence and acquiescence, which is an element in the estoppel to dispute the foreclosure. It is unnecessary, therefore, to consider whether, in the particulars so assigned as error, the evidence sustains the findings. So far as we regard the facts to be material, there is no question on them. It is also unnecessary to consider the assignments of error based on rulings of the court, admitting or excluding evidence bearing only on the question whether the mortgage was paid or purchased by French; and, as we hold the defence under the Hall mortgage to be established, it is unnecessary to consider any assignments referring to the evidence or facts to establish the other defences. The brief of appellants makes the point that there could be no estoppel as to the interest of Charles Claire Britton, an heir of Zenas E. Britton, because, when the latter died, in 1878, Charles Claire was a minor, and it is claimed that a minor cannot be estopped by his laches. The fact that he was a minor does not appear. It is 'alleged in the complaint, denied in the answers, and the court made no finding upon it, and was not requested to make any. But, had the fact appeared, it would not have helped the plaintiffs. A minor may be estopped by the acts and conduct of the ancestor through whom he claims title. The Hall mortgage was foreclosed in 1870. Zenas E. Britton lived till 1878, eight years after the foreclosure, certainly an unreasonable time to allow the foreclosure to appear valid by the record if he intended to assert his right to the property, if he did not intend to let it go, indifferent what might become of it. Leaving the foreclosure undisturbed for that length of time would justify any one in the conclusion that it was valid; so that a purchaser, ignorant of the facts making it invalid, might, after such acquiescence, and without taking into account any acquiescence' of the heir, rely upon the foreclosure as valid. The heir took his title subject to that condition of things. The plaintiffs claim that they were entitled to judgment by default against some of the defendants, who were properly served and did not answer. There is a sufficient reason why they were not entitled to judgment against those defendants. They all derived their [156] titles through warranty deeds from the defendant Bursell, who did appear and defend. As he would be liable to .them on .his covenants in case of judgment against them setting aside such titles, he had a right to defend and prevent such judgment. It would have b^en more regular, perhaps, had he done so by answering in their names; but, being himself made a defendant, and the title being assailed at a point common to all the defendants, we do not see why he might not defend the titles of all derived through his warranty deeds. Judgment affirmed.