Singer v. Farmers State Bank of Goodridge

207 N.W. 631, 166 Minn. 327, 1926 Minn. LEXIS 1185

Opinion

Wilson, O. J.

Plaintiff appeals from a judgment of dismissal. The facts appear in 161 Minn. 301, 201 N. W. 414.

It now appears that the mortgagee unconditionally, consented to the mortgagor selling the mortgaged Chattels. The finding of the trial court to that effect is sustained by the evidence. The lien of the mortgage was by such consent discharged. Fairweather v. Nelson, 76 Minn. 510, 79 N. W. 506; National Citizens Bank v. McKinley, 118 Minn. 162, 136 N. W. 579.

The principle of law correctly stated in the prior decision was inapplicable to the then facts of this case in this, that while the bank in ordinary parlance was a creditor, it was not such under G. S. 1923, § 8345, which contemplates a creditor who has laid hold of the mortgaged property armed with legal process and not a general creditor. Ellingboe v. Brakken, 36 Minn. 156, 30 N. W. 659; Howe v. Cochran, 47 Minn. 403, 50 N. W. 368; Bradley, Clark & Co. v. Benson, 93 Minn. 91, 100 N. W. 670. The result previously reached was correct and could have rested on other grounds. We call attention to the inadvertence so that the decision will not be construed as extending the application of the rule beyond the authority of the cases herein cited.

Affirmed.