Ayer v. Stewart
Supreme Court of Minnesota
This action was brought in the District Court for Eamsey County by the plaintiff, as holder of a second mortgage, to recover the surplus money paid over to the successor in interest of the mortgagor, upon the foreclosure of the prior mortgage, and to enforce his lien thereon. The cause was tried before a referee, who ordered judgment as demanded in the complaint.
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This action was brought in the District Court for Eamsey County by the plaintiff, as holder of a second mortgage, to recover the surplus money paid over to the successor in interest of the mortgagor, upon the foreclosure of the prior mortgage, and to enforce his lien thereon. The cause was tried before a referee, who ordered judgment as demanded in the complaint. The court below set aside the report of the referee, and the plaintiff appeals from the order setting the same aside to this Court. The case is fully stated in the dissenting opinion.
1Opinion of the Court
By the Coivrt
Berry, J.
"We are unable to conceive bow tbe plaintiff could have any claim against Stewart for the surplus money arising from the foreclosure of the Piper mortgage, unless it be upon the basis that as this surplus, while in the hands of the sheriff, belonged to the plaintiff, a second mortgagee, (upon the ground stated in the dissenting opinion in this case) the law would imply that Stewart took the same upon a trust tor the use and benefit of the plaintiff. Assuming that a trust of this nature would be implied, the plaintiff’s right to the surplus in the hands of Stewart, and as…
2Cited by6 opinions
- Mayberry v. Northern Pacific Railway Co.Supreme Court of Minnesota · 1907
- Fortmeyer v. National Biscuit Co.Supreme Court of Minnesota · 1911
- State v. VM JONESWyoming Supreme Court · 1954
- Jackson v. Orth Lumber Co.Supreme Court of Minnesota · 1913
- Berg v. StanhopeSupreme Court of Minnesota · 1890
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