Connecticut Mutual Life Insurance v. King

LEWIS, J. This is an action in ejectment, and involves a review of the second trial secured by plaintiff under the statute. The decision upon the first appeal is reported in 72 Minn. 287, 75 N. W. 376, where will be found a statement of the facts. The trial court in the present action directed a verdict for the plaintiff upon the ground that this court in the former decision had determined the law of the case, [81] and that there were no questions of fact to submit to the jury. Plaintiff moved for judgment notwithstanding the verdict, and, if that be denied, for a new trial. Both motions were denied, and plaintiff appeals therefrom, and from the judgment entered thereon. The first question presented by the appeal is this: In a second trial upon the same state of facts in an action in ejectment, taken under G-. S. 1894, §§ 5845, 5846, does the decision in the former appeal control the second trial according to the doctrine of res judicata, or does such decision stand only upon the rule of stare decisis? The question of the effect to be given to the decision in the first trial has never been passed upon by this court, and no case has been called to our attention, by any other court, which is directly in point. The opinion in Hammond v. Carter, 161 Ill. 621, 44 N. E. 274, considers the question to some extent. As stated in. the opinion in Somerville v. Donaldson, 26 Minn. 75, 1 N. W. 808, and in Kremer v. Chicago, M. & St. P. Ry. Co., 54 Minn. 157, 55 N. W. 928, the statutory provision for a second trial in ejectment was an effort to retain some of the privileges connected with the trial of title to real estate under the old common law. And, while there seems to be no tangible reason at this day for making an exception in this class of actions, the statute is clear; and, considering the history and purpose of the act, its natural and logical construction leads to the conclusion that the second trial should be, in the full sense, another trial. The application of the rule of res judicata would restrict the parties to such a narrow compass upon the second trial that it would practically annul the purpose of the statute in many cases. It is argued with much force that, where the facts are the same upon the second trial, there is no good reason why the first decision should not be considered as final. But even under such circumstances we think the parties should be at liberty to present the same facts a second time, and that the former decision should be considered merely as a precedent under the rule of stare decisis,' to the same extent as though the case had arisen between different parties. It follows, then, that the decision in this case upon the first trial must control unless it is shown to be unsound and should be overruled. Appellant contends for a reversal of the orders and judg [82] ment of the court below upon several grounds, two of which, only, require notice: 1. That the former holding that the eighteen mortgages executed by Long were separate and independent has been overruled in the case of Sheldon v. Brown, 72 Minn. 496, 75 N. W. 709, and by Terry v. Moran, 75 Minn. 249, 77 N. W. 777. While the opinion in the first trial of this case does not furnish any reason for the rule adopted, other than the provisions of the statute referred to, it is stated that numbers on the instruments are taken as prima facie evidence of priority, in the absence of any showing to the contrary. There is no occasion to review the cases referred to as overruling the former decision. We do not consider them in conflict. The former decision is based simply upon the proposition that, in the absence of any showing whatever as to the fact of priority, a redemption creditor may rely upon the record for prima facie evidence of priority, for the purpose of determining his redemption period. The fact that such creditor does rely upon such evidence, and files his notice accordingly, does not determine the actual fact. If the record does not state the true condition as to priority, the rights of the parties may be determined afterwards. In this case the appellant relies wholly upon the presumption that the eighteen mortgages were executed concurrently and are co-ordinate, without introducing a particle of evidence. It would be a serious matter for redemption creditors, if in the first instance they were compelled to go behind the record, and find out what in fact was the proper order of execution. The rule adopted is equitable, imposes no hardship upon any of the parties interested, and deprives no one of his privilege to show the facts. 2. We are asked to reverse the former decision for the reason that it was decided upon a mistake of fact, in this: that at the time King, the holder of the eighteenth mortgage, redeemed, the owners of the seventeenth mortgage had still three days’ time within which they might redeem. 1 It is true that the opinion states that, at the time King redeemed, each of the other seventeen prior mortgagees had lost his lien by failure to redeem, and that therefore King was not required to wait until the full period of his time. But, conceding that King redeemed too soon by three days, does it follow [83] that the person holding under the foreclosure sale can take advantage of it? In this case proper notice was given by King as a subsequent creditor, and within the time limited by the statute he paid the money. The words, “within five days after the time allowed all prior lien holders” (section 6044), are not to be taken strictly to mean that under no circumstances can a party redeem prior to the beginning of the five-day period. As between the parties seeking to redeem, each will be limited to the actual number of days, if their interests conflict. But this statute is for the benefit of redemptioners, and, so far as the party holding under the foreclosure sale is concerned, it is sufficient if the redemption be made not later than the last day fixed. It is immaterial to him if the money be paid in, as in this case. If any conflict arose by reason of redemption by one party within the time open to another, their respective rights may be adjusted between themselves. Orders and judgment affirmed.