Baldwin v. Allison

• Decision Date: 01 January 1860
• Citation: 4 Minn. 11
• Parties: SILAS H. BALDWIN vs. WILLIAM E. ALLISON.
• Court: Minnesota Supreme Court

Page 11

4 Minn. 11

(4 Minn. R. p. 25.)

SILAS H. BALDWINvs.

WILLIAM E. ALLISON.

Supreme Court of Minnesota.

Error to district court, Dakota County.

Points and authorities for plaintiff in error: —

1. A conveyance cannot be set aside in a collateral proceeding; and when a defendant in ejectment does not deny the title of the plaintiff, nor allege title in himself or any other party under whom he claims, the plaintiff should recover judgment on the pleadings and proof.

2. The sale of the mortgaged premises and the foreclosure of the mortgage were regular, and vested the fee in the heirs of the mortgagee. Public Statutes, 438, §§ 12 and 13; id. 436, § 18; id. 644, §§ 5, 6, 7, 8, 9; 9 N. H. 168; 12 N. H. 165.

Points and authorities for defendant in error: —

1. "The notice of mortgage sale was insufficient, and not in compliance with the requirements of the statute, in this, to-wit: It did not set forth the decease of the mortgagee, Rachel A. Baldwin, the appointment of any administrator, or any assignment or transfer of the note and mortgage, in any manner whatever." The notice of sale was insufficient, not being in conformity with the statute, and the court below did not err in so finding. The statute requires that every notice for the sale of mortgaged premises on foreclosure by advertisement shall specify the names of the mortgagor and of the mortgagee, and the assignee, if any. Comp. Stat. 644, ch. 75, § 5; id. 643, § 2.

2. If this court holds that the notice of sale was sufficient, and that the plaintiff had power to sell the premises in question under that notice, he having bid in and purchased the same in his individual capacity, the sale was void, and therefore the plaintiff obtained no rights under the sale. 4 Kent Com. 438, and notes; 1 Gil. P. 458; Conger v. Ring, 11 Barb. 356; Pratt v. Thomaston, 15 Shep. 355; Michoud v. Girod, 4 How. 503.

3. The plaintiff had no power, either as administrator or otherwise, at the time said premises were pretended to be sold, to sell the same, or authorize any one else to sell the same; he had been removed from the office and trust of administrator on said estate by a court having competent jurisdiction, and his letters of administration were revoked and annulled.

A. M. & O. T. Hayes, and Sanborn & Lund, for plaintiff in error.

L. & S. Smith, for defendant in error.

FLANDRAU, J.

William E. Allison, the defendant in error, executed a mortgage upon the premises in question to Rachel A. Baldwin, in her lifetime. She subsequently died, and Silas H. Baldwin, the plaintiff in error, was appointed sole administrator of her estate. In the course of the settlement of the estate, he commenced a foreclosure of the mortgage given by Allison, by advertisement, under the statute. The notice was in the ordinary form, and signed "Silas H. Baldwin, administrator of the estate of Rachel A. Baldwin, the said mortgagee, deceased," and also by the sheriff of the County of Dakota, where the mortgaged premises were situated. The sale was advertised to be made on the sixth day of March, 1858, and on the fifth day of that month the administrator was removed by the probate court of Dakota County, but appealed from the order removing him, which order was subsequently set aside. On the removal of the administrator, a special administrator was, on the sixth day of March, appointed for the estate. The land was sold under the mortgage, and purchased by Silas H. Baldwin for himself, who commenced this proceeding to obtain possession.

The court below held the notice of sale to be insufficient, because it did not set out the death of Rachel A. Baldwin, and the appointment of Silas H. Baldwin as her administrator, evidently regarding these facts as tantamount to an assignment of the mortgage, and as placing the administrator in the position of an assignee of the same. This position is not well taken. The statute (Comp. Stat. 644, § 5), in providing that "every notice shall specify the names of the mortgagor and of the mortgagee, and the assignee if any," has reference only to such assignments as are the subject of contract, and are made by act of the parties. The signature of the administrator, with the affix which appeared with it, was all that was...