Bailey v. Hendrickson

Decision Date11 June 1913
Citation143 N.W. 134,25 N.D. 500
CourtNorth Dakota Supreme Court

Appeal from a judgment of the District Court for Bottineau County Leighton, J.

Reversed.

Judgment of the District Court reversed, and judgment entered in favor of the defendant.

Bosard & Twiford, for appellant.

The evidence with reference to the plaintiff's knowledge of the ownership of the mortgage was wholly irrelevant and immaterial. So, also, in regard to the value of the land. Grove v. Great Northern Loan Co. 17 N.D. 352, 138 Am. St. Rep. 707, 116 N.W. 345.

The sheriff's certificate of sale, shall be taken and deemed evidence of the facts therein recited. Rev. Codes, 1905 § 7137; Rev. Codes, 1905, § 7464.

The party foreclosing a mortgage need not sign his name to the notice. It is sufficient that it appears in the body of the notice. Michigan State Ins. Co. v. Soule, 51 Mich 312, 16 N.W. 662; Babcock v. Wells, 25 R. I. 23, 105 Am. St. Rep. 848, 54 A. 596; Menard v. Crowe, 20 Minn. 448, Gil. 402; Fitzpatrick v. Fitzpatrick, 6 R. I. 64, 75 Am. Dec. 681, note 711; Woonsocket Inst. for Sav. v. American Worsted Co. 13 R. I. 255, 27 Cyc. 1470; Gibbs v. Cunningham, 1 Md.Ch. 44; Freeman Executions, § 285; Perkins v. Spaulding, 2 Mich. 157; Harrison v. Cachelin, 35 Mo. 79; Wallis v. Thomas, 6 La.Ann. 76; Coxe v. Halsted, 2 N.J.Eq. 311; Hoffman v. Anthony, 6 R. I. 282, 75 Am. Dec. 701; McCardia v. Billings, 10 N.D. 373, 88 Am. St. Rep. 729, 87 N.W. 1008.

The statute does not require the notice to be signed by anyone. Rev. Codes, 1905, § 7460.

The sheriff must make the sale. Rev. Codes, 1905, § 7461.

All the law requires is that the advertisement must conform to statutory requirements. Reading v. Waterman, 146 Mich. 107, 8 N.W. 691; Rev. Codes, 1905, § 7460; Stephenson v. January, 49 Mo. 465.

The notice must not be misleading, or calculated to mislead. Iowa Invest. Co. v. Shepard, 8 S.D. 332, 66 N.W. 451; McCardia v. Billings, 10 N.D. 373, 88 Am. St. Rep. 729, 87 N.W. 1008; Judd v. O'Brien, 21 N.Y. 186; Reading v. Waterman, 46 Mich. 107, 8 N.W. 691; Noland v. Bank of Lee's Summit, 129 Mo. 57, 31 S.W. 341.

Notice of sale must be published six times, successively, in a weekly paper. McDonald v. Nordyke Marmon Co. 9 N.D. 290, 83 N.W. 6; Cotton v. Horton, 22 N.D. 1, 132 N.W. 225.

Publication in a legal newspaper of the county in which the land is situated is sufficient. Rev. Codes 1905, §§ 2279, 7459; Smith v. Commercial Nat. Bank, 7 S.D. 465, 64 N.W. 529; Trenery v. American Mortg. Co. 11 S.D. 506, 78 N.W. 991.

Mere inadequacy of the price at which the land sells at foreclosure sale is not sufficient ground for setting sale aside. Grove v. Great Northern Loan Co. 17 N.D. 352, 138 Am. St. Rep. 707, 116 N.W. 345.

Noble, Blood, & Adamson, for respondent.

A person, having the right to exercise a power of sale in a mortgage, must use the utmost good faith and fair dealing towards the mortgagor or owner, and mere technical compliance with the statute is insufficient. Hedlin v. Lee, 21 N.D. 495, 131 N.W. 390 and cases cited; State ex rel. Kunz v. Campbell, 5 S.D. 636, 60 N.W. 34; Stacy v. Smith, 9 S.D. 137, 68 N.W. 198.

Courts of equity will scrutinize with care sales made under powers contained in mortgages, and great inadequacy of consideration will call for careful research and examination of the facts to justify annulling the sale. Longwith v. Butler, 8 Ill. 32; Briggs v. Briggs, 135 Mass. 306; Clark v. Simmons, 150 Mass. 357, 23 N.E. 108; Montague v. Dawes, 14 Allen, 369; Drinan v. Nichols, 115 Mass. 353; Thompson v. Heywood, 129 Mass. 401; Flint v. Lewis, 61 Ill. 299; Webbers v. Curtiss, 104 Ill. 309; Stewart v. Hamilton Bldg. & L. Asso. Tenn. , 47 S.W. 1106.

Such sales made to a mortgagee or to his assignee will be viewed with more suspicion than when made to third persons. 27 Cyc. 1483, and cases cited.

The statutes of this state allow a mortgagee, his assignee, or other legal representative to "fairly and in good faith" purchase the premises. Rev. Codes, 1905, § 7463.

The officer who makes the sale must also act in good faith towards the mortgagor, and see that the sale is fairly and honestly conducted. Campbell v. Swan, 48 Barb. 109; Harrison v. McHenry, 9 Ga. 164, 52 Am. Dec. 435.

The notice of mortgage sale by advertisement must be signed by the person in whom reposes the power of sale. Hebden v. Bina, 17 N.D. 235, 138 Am. St. Rep. 700, 116 N.W. 85.

It is an essential quality that the published notice of sale appear to be given by competent authority, and not by a mere stranger. Niles v. Ransford, 1 Mich. 342, 51 Am. Dec. 95; Bausman v. Kelley, 38 Minn. 197, 8 Am. St. Rep. 661, 36 N.W. 333; Roche v. Farnsworth, 106 Mass. 509; Dunning v. McDonald, 54 Minn. 1, 55 N.W. 864.

SPALDING, Ch. J. FISK, J. (dissenting).

OPINION

SPALDING

Statement of Facts.

This is an action brought January 20, 1910, to vacate a foreclosure sale by advertisement of a second mortgage given by Claude Smith Bailey, the plaintiff herein, upon the N.E. quarter of section 19, in township 163 N., range 83 W., in Bottineau county, and to be allowed to pay such mortgage. It is here for trial de novo. We find the facts to be:

(1) That on the 21st day of August, 1905, the plaintiff was the owner in fee of said premises, and that on that date he executed a second mortgage to one R. H. Grace thereon to secure the payment of the sum of $ 54, evidenced by promissory notes, the last of which became due November 1, 1906;

(2) That such mortgage was recorded in the office of the register of deeds of Bottineau county on the 28th day of August, 1905;

(3) That on the 13th day of September, 1906, said Grace assigned the said mortgage, with the notes secured thereby, to the Mohall State Bank, and that such assignment was recorded in the office of the register of deeds of Bottineau county, on the 30th day of November, 1906;

(4) That said Mohall State Bank, on the 30th of November, 1906, assigned said mortgage to the defendant, Karl S. Hendrickson, together with the notes secured thereby, and that the assignment thereof was recorded in the office of the register of deeds of Bottineau county on the 6th day of March, 1908;

(5) That on the 18th day of March, 1908, a foreclosure proceeding by advertisement was instituted on said mortgage. The body of the notice of sale recited the giving of the mortgage and the two assignments mentioned, and their recording as hereinbefore stated, together with the dates, the hour, and books and pages of record;

(6) That such notice of foreclosure sale was not signed by said Hendrickson, but was signed only by the sheriff of Bottineau county and "Bosard & Ryerson, attorneys for assignee, Mohall, N. D.;" and that the publication of such notice was made in the Lansford Times, a newspaper published at Lansford, Bottineau county, conforming to the requirements of § 2279, Rev. Codes of 1905, and entitled to publish legal notices, for six consecutive weeks, in the issues of March 20 and 27, 1908, April 3, 10, 17, and 24, 1908; and the sale was made on the date advertised, namely April 25, 1908, and at the proper place; that the firm of Bosard & Ryerson was located at Mohall, in the eastern part of Renville county, on the same line of railway on which Lansford is located; that both Lansford and Mohall are approximately 50 miles from Bottineau, the county seat;

(7) That on the 20th day of April, 1908, said firm of Bosard & Ryerson wrote the sheriff of Bottineau county, informing him that the sale was set for Saturday, the 25th day of April, that they had written the Lansford Times to forward him the affidavit of publication and bill for printing, and authorizing him to bid the property in for the amount due;

(8) That the publication was made in the Lansford Times, for the reason that it was only a few miles from Mohall and on a direct mail line therefrom; and that it was a matter of convenience to said firm of attorneys to have their legal notices published in the Lansford Times, and that they had practically all their legal notices published therein as a matter of convenience and to save delay, and for no other reason. It does not appear that the defendant himself knew in what paper publication was made, or the date of sale.

(9) That the sheriff first offered the land for sale in tracts of 40 acres each; that he received no bids therefor; that he then offered the same in legal subdivisions of 80 acres each, but received no bids therefor; that thereupon he offered it in one tract or parcel, and struck off and sold it to the defendant, Hendrickson, for the sum of $ 113.32; and that said Hendrickson was the highest bidder therefor, and that the price mentioned was the highest price bid; that the whole price so bid was paid by said purchaser;

(10) That the certificate of sale was recorded in the office of the register of deeds of Bottineau county, on the 2d day of May, 1908; that on the 27th day of April, 1909, a sheriff's deed on foreclosure by advertisement was executed and delivered by the sheriff of Bottineau county to said Hendrickson, and on the same day recorded in the office of the register of deeds of that county;

(11) That Bailey, the mortgagor, had no actual knowledge of the pendency of said foreclosure proceedings, or of the execution of the deed thereunder, until after the expiration of the period of redemption and the delivery of such deed to the defendant; that he made no attempt to ascertain the amount due on the mortgage, or to pay the same from the time it became due, in 1906, until after the execution and delivery of the sheriff's deed; that during such time he was in Indiana and in the state of Washington, and other places, and that he changed his residence or...

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