Bottineau v. Aetna Life Insurance Co.

• Decision Date: 25 September 1883
• Citation: 16 N.W. 849,31 Minn. 125
• Parties: Mary R. Bottineau and others v. AEtna Life Insurance Company and others
• Court: Minnesota Supreme Court

16 N.W. 849

31 Minn. 125

Mary R. Bottineau and others v. AEtna Life Insurance Company and others

Supreme Court of Minnesota

September 25, 1883

Appeal by defendants from an order of the district court for Polk county, Stearns, J., presiding, overruling a demurrer to the complaint.

Order reversed.

Gordon E. Cole and William Hodgson, for appellants.

Canty & Johnson, for respondents.

Gilfillan C. J. Berry, J., concurring.

OPINION

Gilfillan, C. J.

The action is to have declared null and void two successive foreclosures, or attempts to foreclose a mortgage, under the power of sale, -- the first in 1879, the second in 1882. It is here on an appeal from an order overruling a demurrer to the complaint.

The complaint sets forth several objections to the first foreclosure, only one of which we deem it necessary to refer to. The notice of sale specified as the place of sale "the front door of the court-house in the village of Crookston, in the county of Polk," the county in which the mortgaged premises were situated. The complaint alleges that prior to the day of sale, on said day, and for a long time thereafter, "there never was a court-house, nor any place known as the court-house, or the front door of the court-house, in the town of Crookston, or city of Crookston or at any other place in said county." Crookston appears to have been a city and not a village, as described in the complaint; but as there does not appear to have been more than one Crookston in the county, calling it a village could not mislead, and the misdescription was immaterial. But taking the allegation to be true, the notice appointed as the place of sale a place that did not exist -- an impossible place. It might as well, so far as giving notice where the sale would take place, have omitted mentioning any place. And the designation of a place of sale is an essential requisite of the notice, without which it is in law no notice whatever. That attempt to foreclose was utterly null. It could not affect the right of the mortgagee to begin anew, and, by regular proceedings, execute the power of sale.

At the sale under the notice we have referred to the company bid in the mortgaged premises, and afterwards February, 1881, it executed a conveyance of them to one Noyes, who executed a conveyance to the defendant Frederick F. Day, and he executed conveyances of various parcels to various of the defendants. Subsequently, on December 15, 1881, the company assigned the mortgage to Noyes, and December 20, 1881, he assigned it to Frederick F. Day, both assignments being duly recorded. Day proceeded to foreclose under the power, the sale being had March 21, 1882. To this foreclosure three objections are made by plaintiffs: one, that no foreclosure could be made under the power after the prior abortive attempt to foreclose. This objection we have disposed of. Another of the objections is, that by the conveyances by Frederick F. Day, which we have mentioned, others became equitably interested in the mortgage; that, at the date of the second foreclosure, he was not, in equity, the sole owner of the mortgage, and therefore had no right to foreclose. It may be conceded that, by the conveyances, the defendants to whom they were made became, in equity, part-owners of the mortgage. But that would not affect, so far as the mortgagor was concerned, the right to foreclose under the power. The legal title to the mortgage and power of sale vested in Day. If others had an equitable interest in the mortgage, he held the legal title in trust for them to the extent of their interest. They alone could object to his action, or attempt to control him in his action, under such legal title. They could call upon him to exercise the power and enforce the...