Noerenberg v. Johnson

52 N.W. 1069, 51 Minn. 75, 1892 Minn. LEXIS 14

• Court: Supreme Court of Minnesota
• Decided: August 29, 1892
• Status: Published

Opinion

Per Curiam.

Action to foreclose a mechanic’s lien, in which other lien claimants were among the defendants. All of these liens were subordinated to that of a mortgagee in the court below. The facts were that defendant Barnes sold and conveyed the lot in question to defendant Johnson on September 8, 1890, taking a mortgage to secure part of the purchase price. Through inadvertence, the mortgagee, Barnes, subscribed his name as one of the attesting witnesses to the execution and delivery of this instrument, and there was but one additional witness. The mortgage was spread upon the records in this condition, September 29, and the deed was duly recorded October 22, 1890. All of the parties acted in good faith, and none of those who performed work and labor or furnished materials had actual knowledge of the mortgage. Passing over the contention of counsel for respondent mortgagee, that on the face of the instrument itself it did not appear that one of the parties had signed it as an attesting witness, and hence that the record of the same was not void, so that the lien claimants could take advantage of the fact,— Bank of Benson v. Hove, 45 Minn. 40, (17 N. W. Rep. 449,) being cited, — and thereby assuming that the only question before us is whether an unrecorded bona fide mortgage is superior to the liens of mechanics and material men in ignorance of the unrecorded rights of a mortgagee, the judgment will have to be affirmed. We have examined with care the well-prepared briefs of appellants’ attorneys, and have had the benefit of oral argument, but our views on the subject, as recently expressed in Miller v. Stoddard, 50 Minn. 272, (52 N. W. Rep. 895,) remain unchanged.

Judgment affirmed.

(Opinion published 52 NT. W. Rep. 1069.)