Bowers v. Hechtman

• Decision Date: 13 January 1891
• Citation: 47 N.W. 792,45 Minn. 238
• Parties: George F. Bowers v. Henry Hechtman and another
• Court: Minnesota Supreme Court

47 N.W. 792

45 Minn. 238

George F. Bowers v. Henry Hechtman and another

Supreme Court of Minnesota

January 13, 1891

Appeal by defendants Hechtman and Josephine Bowers from a judgment of the district court for Ramsey county, Kelly, J presiding, setting aside a mortgage foreclosure by advertisement and allowing plaintiff to redeem.

Judgment reversed.

Little & Nunn and R. B. Galusha, for appellants.

John D O'Brien, for respondent.

OPINION

Mitchell, J.

The plaintiff executed to the J. I. Case Threshing-Machine Company, a Wisconsin corporation, a real-estate mortgage containing a power of sale, to secure the payment of $ 1,720 and interest, payable according to the conditions of three promissory notes, to wit: One for $ 400, due October 15, 1884; one for $ 420, due December 1, 1884; and one for $ 900, due December 1, 1885. The mortgage was assigned by the threshing-machine company to one W. M. Nye, who proceeded to foreclose it under the power. The notice of sale stated the amount claimed to be then due to be $ 1,855. The first publication of the notice was on the 1st day of December, 1885, and the sale took place on January 16, 1886, when the mortgaged premises were sold to the defendant Hechtman for the sum of $ 1,979. No redemption being made, Hechtman claims to be the owner of the premises, under his purchase at the foreclosure sale. This action is brought to have the foreclosure sale set aside on two grounds. The first is fraud and conspiracy on part of the defendants; but, as the court found against the plaintiff on this issue, it is unnecessary to refer to it further. The second ground is the alleged irregularity of the foreclosure proceedings in the following specified particulars: (1) That the notice of sale did not correctly state the amount then due on the mortgage, as default had been made in the payment of only about one-half of the sum named in the notice; (2) that the assignment of the mortgage from the threshing-machine company to Nye had never been properly recorded. The court found that, by a valid agreement between Nye and the defendant Bowers, the time of payment of the first two notes had been extended "until the 1st day of December, 1885," which he construed to include December 1st, and therefore that no default had been made in the payment of any part of the mortgage debt at the date of the first publication of the notice of sale, and for that reason the foreclosure was void. He also held that, even if he was wrong in that position, yet, as no default had then been made in the payment of the $ 900 note, the claim in the notice that $ 1,855 (the amount of the three notes) was then due was so grossly excessive as to deter bidders, and for that reason the sale should be set aside. It may be here stated, in passing, that it is not disputed but that $ 1,855 was the correct amount then owing on the three notes; also that there was no evidence of fraud on the part of Nye, or of injury to plaintiff, unless to be inferred from the bare fact of the claim made in the notice. The court also found that the mortgaged premises were at the date of the foreclosure in the actual possession of a tenant of plaintiff, and that no copy of the notice of sale was served on him, and for that reason, if no other, the sale was void. This last finding of the court was not responsive to any issue tendered by the pleadings. The plaintiff's specifications of his grounds of attack on the foreclosure do not include any such point. Neither is there anything in the record indicating that the parties consented to try any such issue. Therefore the judgment cannot be supported on this finding. If any such issue had been tendered, the defendant Hechtman might have supplied the necessary proof. Neither can the judgment be supported on the first ground suggested, viz., the extension of the time of payment of the first two notes. Plaintiff does not claim that there was any such extension, but, on the contrary, in substance, admits that default had been made in the payment of these notes. Hechtman does not admit it, and there was no evidence of it. It is alleged in...