Pioneer Savings & Loan Co. v. Powers

Supreme Court of Minnesota

Pioneer Savings & Loan Co. v. Powers

50 N.W. 227, 47 Minn. 269, 1891 Minn. LEXIS 467

DecidedOctober 26, 1891

StatusPublished

This text of 50 N.W. 227 (Pioneer Savings & Loan Co. v. Powers) 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

Pioneer Savings & Loan Co. v. Powers, 50 N.W. 227, 47 Minn. 269, 1891 Minn. LEXIS 467 (Mich. 1891).

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Opinion

Vanderburgh, J.

The plaintiff brings this action against the defendant, for the alleged unlawful detention of certain mortgaged premises, and seeks the summary recovery thereof, under Gen. St. 1878, c. 84. The plaintiff claims under a mortgage dated July 1, 1890, and defendant is alleged and found tó have been in possession on the 1st day of June, 1891, under a lease from the mortgagor, which we must assume was subsequent to the mortgage. The mortgage has not been foreclosed, and the plaintiff’s right of action is based upon a covenant in the mortgage by which the mortgagee is expressly authorized, in ease of default, “to at once take and receive the rents, use, occupancy, and income of said property, so long as the default exists, and foreclose the mortgage for the whole of the principal sum, with the accrued interest.” Whatever right this covenant may give the plaintiff to claim the rents and enjoy the beneficial use of the property prior to the foreclosure, it does not entitle him to maintain [270]*270this action under the statute. The conventional relation of landlord and tenant between plaintiff and defendant is not shown to exist. The action would not lie against the mortgagor; and, though the defendant is lessee of the latter, plaintiff is not the assignee of the reversion, and has not succeeded to and does not occupy the position of the lessor.

Judgment affirmed.

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Vanderburgh, J.

The plaintiff brings this action against the defendant, for the alleged unlawful detention of certain mortgaged premises, and seeks the summary recovery thereof, under Gen. St. 1878, c. 84. The plaintiff claims under a mortgage dated July 1, 1890, and defendant is alleged and found tó have been in possession on the 1st day of June, 1891, under a lease from the mortgagor, which we must assume was subsequent to the mortgage. The mortgage has not been foreclosed, and the plaintiff’s right of action is based upon a covenant in the mortgage by which the mortgagee is expressly authorized, in ease of default, “to at once take and receive the rents, use, occupancy, and income of said property, so long as the default exists, and foreclose the mortgage for the whole of the principal sum, with the accrued interest.” Whatever right this covenant may give the plaintiff to claim the rents and enjoy the beneficial use of the property prior to the foreclosure, it does not entitle him to maintain [270]*270this action under the statute. The conventional relation of landlord and tenant between plaintiff and defendant is not shown to exist. The action would not lie against the mortgagor; and, though the defendant is lessee of the latter, plaintiff is not the assignee of the reversion, and has not succeeded to and does not occupy the position of the lessor.

Judgment affirmed.

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Bluebook (online)

50 N.W. 227, 47 Minn. 269, 1891 Minn. LEXIS 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pioneer-savings-loan-co-v-powers-minn-1891.