Atkinson v. Duffy

• Citation: 16 Minn. 30
• Parties: ABIGAIL A. ATKINSON and Husband v. CHARLES DUFFY and Wife.
• Decision Date: 01 January 1871
• Court: Supreme Court of Minnesota (US)

16 Minn. 30

ABIGAIL A. ATKINSON and Husband

v. CHARLES DUFFY and Wife.

Supreme Court of Minnesota.

Appeal by defendants from a judgment of the district court, Meeker county.

The action was to set aside a certificate of redemption. Defendants, on October 19, 1860, executed a mortgage with a

power of sale to one Cook, who foreclosed, and the plaintiff Mrs. Atkinson became the purchaser. The notice of sale was published once in each week, the first publication being January 4th and the last February 15th, for a sale February 23, 1867, and the sale took place accordingly.

A. C. Smith and W. P. Warner, for appellants.

COPYRIGHT MATERIAL OMITTED

Cornell & Bradley, for respondents.

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BERRY, J.

Inasmuch as the plaintiffs claim title through the foreclosure of a mortgage by advertisement, it would have been well to have alleged in the complaint that the mortgage contained the usual power of sale; but as the mortgage, which was received in evidence without objection appearing, and is reported as an exhibit in the finding of the court, in fact contains a power of sale, the imperfection possesses no practical or substantial importance.

It was entirely proper to publish the notice of foreclosure sale in a St. Paul newspaper, as required by the statute in force at the time when the publication was made, viz., section 5, c. 81, Gen. St. The application of this statute to the foreclosure of a mortgage executed before its passage does not impair any contract right, but affects the remedy only. See Lowell v. North, 4 Minn. 32, (Gil. 15.)

The notice (which was required to be published for six successive weeks, once in each week,) was published seven times, the first publication occurring on the fourth day of January, 1867, and the last on the fifteenth day of February, 1867, the sale taking place on the twenty-third day of February, 1867, as appointed in the advertisement. It is argued that the sale should have taken place at the expiration of the six weeks, to-wit, on the fifteenth day of February, and that as eight days elapsed after February 15th before the sale on February 23d, the sale is bad. The statutes (sections 5 and 6, c. 81, Gen. St., and sections 68 and 69, c. 66, Gen. St.) make no express provision in regard to the time at which a sale of this kind should be made; and if, in the absence of such provision, the interval between a publication and a sale might be so unreasonably long as to thwart the purpose of the statute, we are clear that no such state of facts is presented by this case. Even if eight days had elapsed between the publication and the sale, as is claimed by the defendants we should be of this opinion; but the fact is that the last publication continued until the twenty-second day of February, the expiration of the publication week, and the sale took place on the next day. This, to be sure, would give a seven weeks' publication, but it is difficult to see why a mortgageor should object that he had more notice than the law required.

The mortgage in question was accompanied by an instrument waiving all right of redemption after sale. It is said, on behalf of the defendants, that the subject of section 3, c. 87, Laws 1860, is not expressed in the title of the act. A former section of the chapter allows the mortgageor three years within which to redeem from a sale, and section 3 provides that this right of...