Gray v. Blabon

Supreme Court of Minnesota

Gray v. Blabon

77 N.W. 234, 74 Minn. 344, 1898 Minn. LEXIS 933

CourtSupreme Court of Minnesota

DecidedNovember 30, 1898

DocketNos. 11,257—(127)

StatusPublished

This text of 77 N.W. 234 (Gray v. Blabon) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gray v. Blabon, 77 N.W. 234, 74 Minn. 344, 1898 Minn. LEXIS 933 (Mich. 1898).

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Opinion

CANTY, J.

This action is similar to Simmer v. Blabon, supra, page 341, except that this action is brought by the assignee of the second [345]*345mortgage. The answer denied, on information and belief, that any such mortgage had been executed. On the trial plaintiff introduced the second mortgage in evidence, and the assignment of it to himself, but he did not introduce in evidence the promissory note referred to in that mortgage and secured by it, or account for the absence of that note. The execution of the note and the transfer to him were not admitted. In our opinion, there was a fatal defect in his proof. He was in fact suing to recover the indebtedness for which the note was given. If he brought suit on the note, he would have to produce it on the trial or account for its absence. He would have to do likewise if he brought an action to foreclose the second mortgage, and this is, in effect, such an action.

The order appealed from is affirmed.

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CANTY, J.

This action is similar to Simmer v. Blabon, supra, page 341, except that this action is brought by the assignee of the second [345]*345mortgage. The answer denied, on information and belief, that any such mortgage had been executed. On the trial plaintiff introduced the second mortgage in evidence, and the assignment of it to himself, but he did not introduce in evidence the promissory note referred to in that mortgage and secured by it, or account for the absence of that note. The execution of the note and the transfer to him were not admitted. In our opinion, there was a fatal defect in his proof. He was in fact suing to recover the indebtedness for which the note was given. If he brought suit on the note, he would have to produce it on the trial or account for its absence. He would have to do likewise if he brought an action to foreclose the second mortgage, and this is, in effect, such an action.

The order appealed from is affirmed.

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Bluebook (online)

77 N.W. 234, 74 Minn. 344, 1898 Minn. LEXIS 933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-blabon-minn-1898.