Lindblom v. Union Central L. Ins. Co. , 58 N.D. 231 ( 1929 )

Plaintiffs brought this action to set aside certain mortgages on real property and to recover on account of payments made pursuant to the terms of the mortgage transaction. When the case was reached for trial in the district court the following stipulation was made:

"It is now stipulated in open court between parties and their respective counsel that this case shall abide the result of the case of Olof Olson v. The Union Central Life Insurance Company and others, ante, 176, 225 N.W. 124, the trial of which has just been completed, and that the same judgment shall be entered in this case as in the Olson Case except as modified and with due regard to the different dates, amounts, names and descriptions, and any reversal, modification or affirmance in the said Olson Case on appeal shall likewise apply to this case. . . ."

The Olson case was determined in favor of the defendants in the district court and judgment was entered accordingly. Pursuant to the terms of the stipulation judgment was likewise entered in the instant case in favor of the defendants. Appeals to this court were then perfected in both cases. The stipulation was recognized as controlling here and the case was submitted with and to abide by the determination of the Olson Case. The Olson Case was affirmed in part and reversed in part. See ante, 176, 225 N.W. 124.

Pursuant to the terms of the stipulation and consistent with the holding in the Olson Case, supra, judgment will be entered in the instant case that the mortgage made, executed and delivered by the plaintiffs to the defendant The Union Central Life Insurance Company to secure the payment of the sum of $5,300, together with interest thereon at the rate of 6 per cent per annum, dated January 7, 1920, is a valid first mortgage on the premises involved in this action; that the commission mortgage executed and delivered by the plaintiffs to Eaton Loan Agency covering the premises involved in this action and the certificate of mortgage sale made upon the foreclosure thereof and the sheriff's deed issued pursuant thereto, are illegal, void and of no effect and that title to said premises be quieted in the plaintiffs as against the same; that the plaintiffs are not entitled to recover against the defendants The Union Central Life Insurance Company or Eaton Loan Agency on account of the notes executed and delivered by plaintiffs to the defendants Sox Schnell, or any payments made thereon.

It is so ordered.

BURKE, Ch. J., and BIRDZELL, CHRISTIANSON, and BURR, JJ., concur.