
    Lucinda Hostetter vs. Joseph Alexander.
    April 28, 187
    Appeal from Judgment. — An appeal taken within six months after the entry of the judgment appealed from is in time.
    
      Mortgage not a Negotiable Instrument. — Johnson v. Carpenter, 7 Minn. 176, followed upon tlie'point that the privileged character of a negotiable note does not extend to a mortgage by which the same is secured.
    Action to reform and foreclose a mortgage on real estate, made by defendant to one Irish, to secure the purchase money upon a sale and conveyance of the same real estate by Irish to him, and by Irish assigned, together with the mortgage notes, (which were payable to bearer,) to the plaintiff. Defence, want of title in Irish to the premises conveyed, and consequent failure of the consideration of the notes and mortgage, and a partial payment before the assignment to plaintiff. Trial in the district court for Dodge county, before Lord, J., who found (among other things) that plaintiff purchased the notes and mortgage before maturity, for a valuable consideration, with knowledge of the consideration for which they were made,, but without any knowledge or information of any defect in the title to the premises, or any failure of the consideration; and that, therefore, it was unnecessary to determine whether there had been, or was in fact, any failure of the title conveyed by Irish to the defendant. The court further found the payments alleged in the answer, and the amount due on the mortgage and notes,, and ordered judgment for plaintiff, which was entered, and defendant appealed. The appeal was taken more than six months after the decision and order for judgment, but within six months after entry of judgment.
    
      Chas. C. Willson, for appellant.
    
      S. L. Pierce, for respondent.
   Berry, J.

This appeal was taken within six months after the entry ” of the judgment appealed from. It was, therefore, in time. Laws 1869, ch. 70s; Humphrey v. Havens, 9 Minn. 318.

The principal question presented by this case was examined and considered in Johnson v. Carpenter, 7 Minn. 176. It was there determined that “ where a debt is secured by a mortgage, and also by a negotiable promissory note, tbe mortgage is a chose in action as between tbe mortgagor and any subsequent assignee, and is taken subject to tbe state of accounts between tbe mortgagor and mortgagee at tbe time of tbe assignment; ” and, in effect, that tbe privileged character of tbe note as negotiable paper does not extend to tbe mortgage by which it is secured, but that tbe mortgage is exposed to tbe same defences in tbe hands of an . assignee as in tbe bands of tbe mortgagee. If this was not tbe only ground upon which tbe decision in Johnson v. Carpenter was based, it is evident that it was tbe ground which received most consideration in that case from tbe court and counsel, and upon which tbe court mainly relied. Notwithstanding tbe doubt which may be thrown around tbe original soundness of Johnson v. Carpenter by tbe comparatively recent case of Carpenter v. Longan, 16 Wall. 271, and tbe considerations there suggested, we are not disposed to disregard or overrale a decision of our own court so distinctly made. It follows that, in our opinion, tbe court below erred in declining to pass upon tbe issue as to tbe want or failure of tbe consideration of tbe notes and mortgage involved in tbe action.

Judgment reversed.  