Beal v. White

• Decision Date: 09 May 1881
• Citation: 8 N.W. 829,28 Minn. 6
• Parties: Chauncey Beal and Wife v. George H. White
• Court: Minnesota Supreme Court

8 N.W. 829

28 Minn. 6

Chauncey Beal and Wife v. George H. White

Supreme Court of Minnesota

May 9, 1881

Plaintiffs brought this action, under Gen. St. 1878, c. 81 § 24, in the district court for Watonwan county, to recover excessive interest embraced in the foreclosure of certain land which they had mortgaged to defendant. A demurrer to the complaint was overruled by Dickinson, J., and the defendant appealed.

Order affirmed.

J. W Seager, for appellant, cited Horton v. Maffitt, 14 Minn. 289; Daniels v. Smith, 4 Minn. 117, (172;) Donnelly v. Simonton, 7 Minn. 110, (167;) Standish v. Vosberg, 27 Minn. 175.

W. C Jones, for respondents.

OPINION

Gilfillan, C. J.

Appeal from an order overruling a demurrer to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action. The complaint certainly has serious faults in its mode of stating or attempting to state the facts on which plaintiffs rely. But, as it is evident that only the objections made here by the defendant's points were made in the court below, we will confine our decision to those points. The action is to recover, under Gen. St. 1878, c. 81, § 24, the chapter regulating the foreclosure of mortgages. That section reads: "That the mortgagor, his heirs or assigns, at any time within one year after foreclosure, may recover from the owner of the mortgage, at the time of foreclosure, three times the amount of any costs or disbursements not absolutely paid for said foreclosure, and three times the amount of any bonuses or interest over and above twelve per cent. embraced in said foreclosure, and for which the property was sold, unless said overplus has been paid to the mortgagor or his assigns." This action was brought within the year allowed for redemption from the sale. The points made here are -- First, that the action cannot be brought until the foreclosure has become complete by expiration of the time allowed for redemption; second, that section 24 was repealed by Laws, 1879, c. 66.

The first point assumes that in section 24 the legislature use the word "foreclosure" in the sense of a foreclosure completed and perfected, so as to pass the title to the purchaser. This court has frequently held that, to make a foreclosure perfect, the time allowed the owner of the property to redeem must have expired; that until then the title does not pass, and that until then the sale is subject to be annulled and defeated by redemption. If that is the sense in which the word "foreclosure" is used in the section, of course this action is prematurely brought. We think, however, that is not the meaning of the word as there used, but that the legislature had in mind the more popular sense, of indicating the proceedings resulting in and including the sale in fact, -- the striking off of the property by the sheriff. Thus, section 13 speaks of the mortgage as "the mortgage foreclosed," with reference to a time necessarily prior to the lapse of the time to redeem. Section 23 requires the party foreclosing to file an affidavit of costs and disbursements absolutely paid within 10 days after "foreclosure." In that section the word is evidently used as meaning the sale. Section 24 speaks of the owner of the mortgage at the time of the foreclosure. When the time to redeem has expired, the mortgage has ceased to exist as a mortgage or security, and it would not be accurate to speak of the...