Nelson v. Central Land Company
| Decision Date | 12 July 1886 |
| Citation | 29 N.W. 121,35 Minn. 408 |
| Parties | Andrew Nelson v. Central Land Company |
| Court | Minnesota Supreme Court |
Plaintiff brought this action in the district court for Douglas county, to determine defendant's claim of title to certain land. The action was tried before Baxter, J without a jury, and, upon the facts as found by the court judgment was directed for defendant. The plaintiff claims title under the foreclosure by advertisement, in 1871, of a mortgage made by one Alpheus Chance, the then owner, to the plaintiff. When the plaintiff rested, the defendant called upon him to produce a certificate of sale, dated April 3 1869, alleged to have been made on a prior foreclosure sale under the power of sale in the same mortgage. The plaintiff stated that he never had such a certificate, and that no such certificate existed. The defendant, having proved by the register of deeds that his office contained no record of such a certificate of sale, and that there was no evidence in his office of any sale on foreclosure of this mortgage in 1869, called one Thomas, who testified, against plaintiff's objection and exception, that in February, 1870, he saw in the possession of one Mower a certificate of sale of the land in question, based upon the power of sale contained in the mortgage to plaintiff, signed by George Harper, sheriff, and dated about April 9, 1869; that Mower was plaintiff's attorney to foreclose the mortgage; that the land in question was described as sold for $ 282; that he read the certificate, and that it was acknowledged and had two witnesses. The defendant then offered in evidence the record, from the registry of deeds, of a certificate, dated March 1, 1870, made by George Harper, as sheriff of Douglas county, and certifying to the redemption on that day, by Alpheus Chance, of the land in question from a sale made on April 3, 1869, by Harper, as sheriff, under the power of sale contained in the mortgage from Chance to plaintiff. The defendant then called upon the plaintiff to produce the affidavit of publication of the notice of the sale on April 3, 1869. The plaintiff stated that he never had such an affidavit. The defendant then put in evidence, against plaintiff's objection and exception, copies of the Alexandria Post of February 17, March 10, March 17, March 24, and March 31, 1869, each of which contained a notice, dated February 15, 1869, and signed by the plaintiff, as mortgagee, and by John S. Mower, as attorney for mortgagee, for the sale of the land in question on April 3, 1869, under the power of sale contained in the mortgage from Chance to plaintiff. This notice was in proper form. To prove its own title, defendant then offered in evidence a state assignment certificate, dated September 19, 1882, of the rights acquired by the state at the sale pursuant to the tax judgment entered in August, 1881, to enforce payment of taxes delinquent for 1880. The foregoing is all the evidence offered by defendant. Plaintiff appeals from the judgment.
Judgment reversed, and new trial ordered.
Chas. C. Willson, for appellant.
A. C. Brown, for respondent.
The plaintiff claims title under the foreclosure of a mortgage upon the lands in controversy. The defence is (a) satisfaction of the mortgage through a redemption under an alleged prior foreclosure, and (b) title in fee acquired by the defendant under a tax sale.
1. The records disclose no evidence of such prior foreclosure except the reference thereto in a redemption certificate appearing of record; but the defendant, in order to prove such foreclosure, introduced parol evidence of the contents of an alleged lost sheriff's certificate of sale, and insists that the prior legal foreclosure of the mortgage was presumptively established by such evidence, under Laws 1883, c. 112, which provides that the sheriff's certificate of sale, under a power contained in a mortgage, shall be prima facie evidence that all the requirements of law in that behalf have been duly complied with. Such secondary evidence was, however, we think improperly admitted, against the objection of the plaintiff, because no proper foundation was laid for it. That is to say, due diligence was not exercised to secure the production of the original. It was...
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