Kersten v. Kersten

[Jaggard, J.]1 This action is brought by plaintiff and appellant, stepson of the defendant and respondent, against her to recover a share of described real estate mortgages. Plaintiff is the only child of his father, John Kersten, deceased, the husband of Anna Kersten, defendant. The final decree in his estate was entered on August 21, 1909. One controversy here involved is whether the mortgages were properly transferred to the defendant, Anna Kersten. Prior to his death/ John Kersten duly assigned them to her. The question then arises whether the assignments were delivered. Plaintiff has pressed upon our attention certain testimony tending to show a practice between the husband and wife, in dealing with mortgages, to take the mortgage from the party making the njurtgage, and to assign it to the wife when the money belonged to the wife, and assign it to the husband when the money belonged to the husband, and leave it to be recorded and delivered after the death of the owner of the particular mortgage, so as to avoid the [26] necessity of making a will or of probating an estate. If this were all the testimony on the subject, plaintiff’s argument would have a cogency which it does not possess in view of other testimony on the subject. For example, the wife testified positively that she had earned the money loaned; that her husband transacted the business for her, looking up the loans, and making out the papers. He then came back and gave her the mortgages and notes in each case. Among other things she testified: “A. Yes; I put it in my case. Q. You put it in your box? A. In my box, yes.” There was much other testimony tending to show delivery. In the light of this record, it is our duty to sustain the finding of fact by the trial court that the assignments were delivered. The final controversy is whether these assignments were void for the reason that they attempted to pass an interest in real estate in a transaction between husband and wife. Section 3609 of the Revised Laws of 1905 provides: “No contract between husband and wife relative to the real estate of either, or any interest therein, nor any power of attorney or other authority from the one to the other to convey real estate, or any interest therein, shall be valid; but in relation to all other subjects, either may be constituted the agent of the other, or- contract with the other.” In Phillips v. Blaker, 68 Minn. 152, 70 N. W. 1082, a mortgage executed by the husband to a wife on his real estate was held to be invalid, and to constitute no lien upon the land. It is obvious that that decision does not control this controversy. Here the land mortgaged belonged, not to the husband, but to a third person. On principle and authority both, there is no doubt that the husband has a right to assign to the wife a chose in action, the debt, to which the mortgage is but an incident. Johnson v. Carpenter, 7 Minn. 120 (176); McManaman v. Hinchley, 82 Minn. 296, 84 N. W. 1018; First National Bank v. Pope, 85 Minn. 433, 89 N. W. 318. Per Curiam. For reasons given in the foregoing opinion, prepared by the late Justice Jaggard, and in accordance with the conclusion reached by the court, the order appealed from is affirmed. Footnotes [1] See per curiam order on page 26.