Cleveland v. Booth

44 N.W. 670, 43 Minn. 16, 1890 Minn. LEXIS 96

• Court: Supreme Court of Minnesota
• Decided: February 17, 1890
• Status: Published

Opinion

Dickinson, J.

This is an appeal from an order overruling a demurrer to the complaint in an action to foreclose a mortgage. For the understanding of the issue of law thus presented, a summary of the facts more fully set forth in the complaint will be sufficient. The mortgage was given to secure a promissory note, together with several coupon notes for the interest to become due on the principal note. It contained a power of sale, to be exercised in case of default in payment of the principal or interest, or of any part thereof. By successive conveyances from the mortgagor, all of which were made subject to the mortgage, the land has come to this defendant Booth, who now owns it subject to the mortgage. The mortgage, through several intermediate assignments, has been transferred to the other defendant, Mrs. Hamilton. But, prior to the assignment to her, a former holder of the mortgage detached several of the coupon notes, which have been assigned to the plaintiff, and which are past due. The principal debt was not mature when the plaintiff, as the holder of such coupon notes, commenced this action to foreclose the mortgage. The defendant Booth alone prosecutes this appeal. The complaint states a cause of action. The plaintiff was entitled to foreclose for the secured interest notes due and unpaid, although the principal was not yet mature. Gen. St. 1878, c. 81, §§ 3, 4; Fowler v. Johnson, 26 Minn. 338, (3 N. W. Rep. 986, and 6 N. W. Rep. 486.) Neither is the relief of a foreclosure to be denied plaintiff because the principal debt is held by another person. The latter is made a party to this action, and her rights will not be disregarded. In what precise form relief will be granted is a matter not now to be considered.

Order affirmed.