Abbott v. Peck

• Decision Date: 07 September 1886
• Parties: ABBOTT AND OTHERS v PECK AND ANOTHER.
• Court: Minnesota Supreme Court

35 Minn. 499

29 N.W. 194

ABBOTT AND OTHERSvPECK AND ANOTHER.

Supreme Court of Minnesota.

September 7, 1886.

Appeal from an order of the district court, Hennepin county, sustaining defendants' demurrer to a complaint in action to set aside sale under foreclosure of a mortgage.

Thomas Canty, for appellants, Seth Abbott and others.

Smith & Reed, for respondents, Dennis L. Peck and another.

VANDERBURGH, J.

The mortgage described in the complaint embraced a certain tract of land, described by government subdivision, and was executed by Seth Abbott to Dennis L. Peck, August 1, 1883. Within a short time thereafter the mortgaged premises were surveyed and platted into blocks, eight in number, which were numbered and subdivided into lots, also numbered. Each block, except block 1, was platted with an alley 14 feet in width running through it. The premises were so subdivided with the approval of the mortgagee, and the streets and alleys laid out and designated on the plat were duly dedicated to the public, the mortgagor and mortgagee both uniting in the grant. Upon the subsequent foreclosure of the mortgage by Peck it appears that the premises were sold in separate blocks, as shown by the plat, except that certain lots in block 8 were sold separately. These lots, together with block 3, were afterwards redeemed by the grantees of Abbott. Other lots and blocks had been previously sold by him to divers persons, who are joined as plaintiffs in this suit.

The complaint shows that “none of said real estate was offered in separate tracts at said foreclosure sale, except block 1 and said lots in block 8;” and that, by reason of such irregularity, the mortgaged premises sold for a grossly inadequate price.

The legal questions involved arose upon a demurrer to the complaint, which was sustained by the trial court.

Plaintiff's objection is not that the land was not sold in separate lots as platted, but he insists that the blocks with alleys were thereby divided, each into separate half blocks or parcels, which should have been sold separately. If the mortgagee had not joined in the dedication upon the plat, he would presumptively have been entitled, under the power of sale, to sell the premises as described in the mortgage, and the mortgagor could not, without his consent, withdraw dedicated streets and grounds from the lien of the mortgage. Lamerson v. Marvin, 8 Barb. 13; Green v. Fowler, 24 Barb. 135; Hubbell v. Sibley, 5 Lans. 57; Johnson v. Williams, 4 Minn. 267, (Gil. 183;)Paquin v. Braley, 10 Minn. 382, (Gil. 304.)

How far equity, in such a case, might, on a proper showing, control the manner of conducting the sale, we need not inquire. But here the mortgagee was bound by the dedication, and any sale made by him was necessarily subject thereto; and the sale of these blocks by the designated numbers was, of course, subject to the public easement in the streets and alleys, precisely as if the sale were conveyed by similar descriptions by deed. The appellant...