Bausman v. Faue

• Decision Date: 16 February 1891
• Citation: 48 N.W. 13,45 Minn. 412
• Parties: BAUSMAN ET AL. v FAUE.
• Court: Minnesota Supreme Court

45 Minn. 412

48 N.W. 13

BAUSMAN ET AL.vFAUE.

Supreme Court of Minnesota.

Feb. 16, 1891.

(Syllabus by the Court.)

M., owning certain lands, in 1855 executed to H. a mortgage thereon containing the usual power of sale, which mortgage was duly recorded. M. then, in 1856, conveyed and lands to B. and B., by deed duly recorded, and the grantees at the same time executed to M. a mortgage on the lands, which was duly recorded. In 1857 they executed to F. a mortgage on part of the land, which was duly recorded. In 1857 the mortgage to M. was assigned to F. About the same time F. purchased the mortgage to H., though it was not assigned in writing. September 16, 1859, the mortgage to F. was foreclosed. In that year, 1859, the value of the lands being much less than the amount of the incumbrances, B. and B., as found by the court below, “abandoned all of said lands to the incumbrances then outstanding upon and against the same,” and never thereafter exercised any act of ownership over, nor asserted any claim to, any of said land, nor paid any principal or interest on the incumbrances on the land, nor paid any taxes; their successors in claim of title paying them from 1885 down. The taxes from 1858 to 1885 were paid by those claiming under the foreclosure of the Hall mortgage. In 1870, the administrator of F. (he having died) attempted a foreclosure under the power of the mortgage to H., G. becoming the purchaser. The certificate was duly recorded, and there was no redemption. The foreclosure was void, because the notice of sale was in the name of H., who was then dead, but upon the record it appeared to be entirely regular. In 1873 G. conveyed to T., and in 1882 T. conveyed to D., through whom defendant claims. Each conveyance was upon a full consideration actually paid at the time, each grantee being at the time ignorant of the defect in the foreclosure, and each, in making his purchase, relied on the apparently perfect record title in his grantor. Held, that the mortgage and power of sale, subject to which they held their title, giving color of right to any attempt that might be made to foreclose it and to the record of such foreclosure, it was the duty of B. and B., if they intended to maintain their title against the apparently perfect record title under the foreclosure, to seasonably assert the same by clearing the record of such foreclosure proceedings; and that, upon their failure to do so beyond a reasonable time, they were estopped to question the validity of the foreclosure as against those who purchased relying upon the apparent record title. Also, that, while ignorance of the fact of such foreclosure, if excusable, might excuse delay to assert their title against the foreclosure, ignorance due to their own gross neglect is no excuse.

Appeal from district court, Hennepin county; LOCHREN, Judge.

Francis G. Burke and Geo. M. Bennett, for appellants.

E. E. Witchie, (Edward Savage, of counsel,) for respondent.

GILFILLAN, C. J.

The action is under the statute to determine adverse claims to real estate, the complaint alleging that the plaintiffs are the owners in fee, and that it is vacant. The answer denies the allegations of the complaint, except that defendant claims some right, title, and interest in the real estate; alleges that defendant is the owner; and as a further defense sets forth facts which are substantially found by the court below. That court, trying the case without a jury, found the facts, and as a conclusion of law found plaintiffs to be the owners, subject to equities existing in favor of defendant, and ordered that, if plaintiffs within 30 days should file a stipulation agreeing to pay defendant the consideration paid by him on his purchase of the real estate and the taxes paid by him since such purchase, a further hearing should be had to determine the amount of purchase money and taxes, and, on payment thereof, judgment should be entered confirming the plaintiffs' title, clear of all claims of defendant; but, if plaintiffs should fail to file the stipulation, or pay such amount, judgment should be entered dismissing the action. The facts found by the court below were, avoiding too detailed a statement, in substance as follows: December 31, 1855, one Moore was the owner of the N. 1/2 of the S. E. 1/4 and the S. W. 1/4 of the N. E. 1/4 of section 9, township 29, range 24, containing 120 acres, and on that day he and his wife executed to one Hall a mortgage thereon, containing the usual power of sale, to secure the sum of $277.37, which mortgage was recorded the same day. About July 10, 1857, Theodore E. French purchased this mortgage and the note it secured, though it is not found there was any formal assignment. August 6, 1856, Moore and his wife conveyed the 120 acres to Jacob B. Bausman and Zenas E. Britton, the deed being duly recorded. August 7, 1856, said grantees executed to said Moore two notes-one for $1,111, due January 8, 1857; and the other for $1,810, due August 7, 1857,-and a mortgage on said real estate to secure the same, which mortgage was on August 7, 1856, duly recorded. January 27, 1857, Moore assigned this mortgage to one Thomas, and July 10, 1857, Thomas assigned it to Theodore E. French, with the note for $1,810; the other having been paid. June 27, 1857, said Bausman and Britton executed to French a mortgage containing the usual power of sale upon said S. W. 1/4 of the N. E. 1/4 and the N. W. 1/4 of said S. E. 1/4, to secure their note to him for $4,000, payable two years from that date, with interest at the rate of 30 per cent. per annum, which mortgage was duly recorded July 8, 1857. At the time of executing that mortgage French retained from the $4,000 enough to satisfy the said mortgage to Hall and the amount unpaid on said mortgage to Moore, upon the agreement that he might therewith pay said mortgages, or purchase and hold the same for his better security. June 27, 1857, said Bausman and Britton caused the N. E. 1/4 of said S. E. 1/4, in which the real estate in controversy is situated, and part of the N. W. 1/4 of the S. E. 1/4, to be platted as Oakland addition to Minneapolis. September 15, 1859, the mortgage to French was duly foreclosed under the power of sale, French being the purchaser, except of five acres in the N. E. corner of the mortgaged premises. The certificate of sale was duly recorded, and there was no redemption from such foreclosure. In October, 1870, an attempt was made by the administrator of French (he having died) to foreclose, under the power of sale, said mortgage to Hall, R. B. Galusha becoming the purchaser. The certificate of sale was duly recorded November 11, 1870, and there was no redemption. The foreclosure proceedings were in all respects regular, except that the notice of sale was signed only in the name of Hall, the mortgagee, he having died several years before. This, as decided in Bausman v. Kelley, 38 Minn. 197,36 N. W. Rep. 333, rendered the foreclosure void, though in that case the fact that the attempt to foreclose was on behalf of the administrator did not appear. October 8, 1873, Galusha, for a valuable consideration paid, conveyed to one Taft the N. 1/2 of the N. E. 1/4 of the S. E. 1/4, except lots 3 and 4 of block 2 in said Oakland addition, the deed being recorded October 10, 1873. December 8, 1882, Taft conveyed said last-described real estate to one Dunsmoor by deed duly recorded December 14, 1882. From May 30, 1878, till the conveyance to Dunsmoor, a tenant of Taft was in possession of the east half of the real estate so conveyed to Taft. Conveyances of the real estate here in controversy were made from Dunsmoor to Mitchell, from Mitchell to Babcock, and from Babcock to defendant; each of the deeds of conveyance being duly recorded at or about the time of making it. Each of the conveyances was made upon a full consideration actually paid by each purchaser. Neither Taft, Dunsmoor, Mitchell, Babcock, nor defendant had any notice of the defect in the foreclosure of the Hall mortgage, nor of any adverse claim, until long after he had made his purchase and paid the consideration therefor; and each, in making his purchase, relied on the apparently perfect record title in his grantor, shown by the records in the office of the register of deeds. February 9, 1859, said Britton conveyed to said Bausman the undivided half of certain lots, including those here in controversy, in said Oakland addition to Minneapolis, and the deed was recorded July 1, 1859. During the year 1859 the value of the 120 acres did not exceed $20 per acre, the total being much less than the incumbrances on it; and in that year Bausman and Britton (we state it in the words of the court...