Fletcher v. Neudece

14 N.W. 513, 30 Minn. 125, 1883 Minn. LEXIS 101

Opinion

Gtleillan, C. J.

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Action for converting a frame building. It appears that the building originally belonged to one Schultz, who executed a chattel mortgage thereon to jolaintiff, and then sold and delivered it to defendant, the mortgage being mentioned in the bill-of sale. After this, plaintiff brought suit against Schultz to foreclose the mortgage, obtained a decree of foreclosure and sale, and the building was accordingly sold, plaintiff becoming the purchaser. The defendant was in possession under the sale and delivery to him. The complaint alleges a demand by plaintiff upon defendant for the building, and a wrongful detention by defendant. The answer does not deny the demand, but takes issue only on plaintiff’s title and tte value.

As defendant was not made a party to the suit to foreclose, of course tbe judgment or decree was of no effect as to liim. As between plaintiff and him, the mortgage stands as though no attempt to foreclose had ever been made, and their rights are to be determined upon the mortgage alone. The mortgage vested the legal title in plaintiff, leaving in the mortgagor and his vendee, this defendant, only an equity of redemption, (Mann v. Flower, 25 Minn. 500,) and, unless it provided to the contrary, it also vested in him, as incident to the legal title, the right to the possession; for prima facie the right to the possession goes with the legal title. The mortgagee may take possession without the consent of the mortgagor. Braley v. Byrnes, 21 Minn. 482. A wrongful refusal by the mortgagor to allow him to take possession amounts to a conversion, and the question whether any other mode of foreclosure than by suit was open to the mortgagee is immaterial.

Order reversed, and new trial ordered.

Mitchell, J., because of illness, took no part in this ease.