Abbott v. Peck
| Decision Date | 07 September 1886 |
| Citation | 29 N.W. 194,35 Minn. 499 |
| Parties | Seth Abbott and others v. Dennis L. Peck and Wife |
| Court | Minnesota Supreme Court |
On August 1, 1883, Seth Abbott, the plaintiff, being the owner thereof, duly mortgaged to the defendant Dennis L. Peck a certain tract of land, to secure the payment of $ 36,000. Afterwards Abbott and Peck caused the land to be surveyed and platted into 8 blocks, which were divided into lots. All the blocks, except block 1, were divided into two parts by alleys. Peck joined in the dedication on the plat, and released the lien of his mortgage from the streets and alleys. Default having been made in the terms of the mortgage, it was foreclosed by advertisement, the sale being made on November 22, 1884. At the sale, blocks one to seven inclusive were each offered separately as one tract, and were sold to Peck. Lots 17 to 24 inclusive of block 8 were also sold to Peck. None of the real estate, except block one and the lots in block eight, was otherwise offered for sale in separate tracts. Subsequent to the platting and prior to the mortgage foreclosure, the plaintiff Abbott, at various times conveyed various lots in different blocks to his co-plaintiffs.
The plaintiffs brought this action in the district court for Hennepin county, in January, 1886, to have the foreclosure sale adjudged null and void. The complaint, after stating the facts above recited, alleges that, by reason of the acts of the defendant Dennis L. Peck, the mortgaged premises sold for a grossly inadequate price, and that they were worth the sum of $ 72,600, being about twice the amount bid at the sale. The plaintiffs appeal from an order by Lochren, J sustaining a demurrer to the complaint.
Order affirmed.
Thomas Canty, for appellants, cited Piel v. Brayer, 30 Ind 332; Cartwright v. McFadden, 24 Kan. 662; Patterson v. Miller, 52 Md. 388; Lee v Mason, 10 Mich. 403; Tatum v. Holliday, 59 Mo. 422; Miller v. Mann, 55 Vt. 475; Durm v. Fish, 46 Mich. 312, (9 N.W. 429;) Worley v. Naylor, 6 Minn. 123, (192;) Barney v. Keokuk, 94 U.S. 324; Bailey v. Culver, 12 Mo.App. 175, 183; Hickok v. Trustees of Plattsburgh, 41 Barb. 130; Morris v. Bowers, Wright, (Ohio,) 749; Farnham v. Jones, 32 Minn. 7, (19 N.W. 83;) Gen. St. 1878, c. 81, § 9.
Smith & Reed, for respondent, cited Paquin v. Braley, 10 Minn. 304, (379;) Lalor v. McCarthy, 24 Minn. 417; Bottineau v. AEtna Life Ins. Co., 31 Minn. 125, (16 N.W. 849;) Butterfield v. Farnham, 19 Minn. 58, (85;) Menard v. Crowe, 20 Minn. 402, (448;) Bidwell v. Whitney, 4 Minn. 45, (76;) Johnson v. Williams, Id. 183, (260;) Dickerson v. Hayes, 26 Minn. 100.
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. 9; Griswold v. Fowler, 24 Barb. 135; Hubbell v. Sibley, 5 Lans. 51; Johnson v. Williams, 4 Minn. 183, (260;) Paquin v. Braley, 10 Minn. 304, (379.)
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 same were conveyed by similar descriptions by deed. The...
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