O'Brien v. Kreuz

Decision Date06 December 1886
Citation36 Minn. 136,30 N.W. 458
PartiesO'BRIEN and others v KREUZ.
CourtMinnesota Supreme Court


(Syllabus by the Court.)

Ward v. Huhn, 16 Minn. 159, (Gil. 142,) followed, to the effect that one having an individual interest in a larger tract than is allowed, is not thereby entitled to claim as a homestead any more of the tract than the amount specified in the statute.

Where an entire tract is sold as one parcel at a foreclosure, a redemptioner, having a lien on only a part of the tract, may redeem the whole, and is thereby subrogated to the rights of the purchaser.

The right to foreclose, pursuant to the statute in force at the time of the execution of a mortgage, under the power of sale contained in it, cannot be taken away by subsequent legislation.

Where an act of the legislature is void (for unconstitutionality)in some of its provisions, while others, standing alone, would be unobjectionable, the latter will fall with the former, if the provisions are so mutually dependent on and connected with each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and would not have passed any, if all could not stand.

Thus, chapter 121, Gen. Laws 1877, repealing (in terms) title 1, c. 81, Gen. St. 1866, is void, so far as it assumes to abolish foreclosures under powers of sale in mortgages executed before its passage; and as it is not to be supposed that the legislature would, independently of such abolishment, take away the right of redemption from such foreclosures, the act cannot be sustained to take them away.

A judgment creditor's right to redeem from the foreclosure of a prior mortgage, and the terms on which he may redeem, is fixed by the statute in force at the date of docketing his judgment. This right cannot be taken away or impaired by subsequent legislation; following Willis v. Jelineck, 27 Minn. 18;S. C. 6 N.W. Rep. 373.

Appeal from a judgment of the district court, Steele county.

G. W. Batchelder, for respondents, O'Brien and others.

Sawyer & Sawyer, for appellant, Kreuz.


On May 29, 1875, one John Byfield was the owner of an undivided one-sixth of 160 acres of land, and on that day he and his wife executed to one Sheldon a mortgage upon such one-sixth, containing the usual power of sale. At that time, and until March, 1882, he, with his family, resided upon, and claimed as his homestead, the whole 160 acres. On November 8, 1877, plaintiff recovered a judgment against Byfield, which, on the thirteenth of the same month, was docketed in the county where the land lay. On March 25, 1882, the mortgage was duly foreclosed under the power of sale, the entire 160 acres being sold as one parcel; and the certificate of sale was on February 9, 1883, assigned by the purchaser to defendant. The mortgage contained a stipulation for interest from its date till paid, at the rate of 12 per cent. per annum. Within the times required by law for redemption by a lien creditor, the plaintiffs, claiming a right to redeem under their judgment, complied with the provisions of law in that behalf,-paying, however, to the sheriff who made the sale no greater rate of interest on the sum bid than 7 per cent. per annum; and the sheriff executed the usual certificate of redemption, which was duly recorded. The validity of this redemption, and what interest passed by it to the plaintiffs is in question; its validity being denied on the ground that the rate of interest paid was only 7 per cent., instead of 10 per cent., as required by section 13, c. 81, Gen. St. 1878.

The mortgage, being executed by the husband and wife, took precedence of the homestead right, and the right was defeated by the foreclosure becoming absolute. The title passed discharged of the right. The judgment became a lien subject to that right. The homestead extended only to 80 acres of the 160,-Ward v. Huhn, 16 Minn. 159, (Gil. 142,)-so that the judgment was a lien on an undivided one-sixth of 80 acres of the 160; and, as the entire 160 was sold as one parcel at the foreclosure sale, plaintiffs, in order to redeem the interest on which they had a lien, were obliged to redeem the whole tract. This they had a right to do, and become subrogated to the right of the purchaser in the whole tract. Willis v. Jelineck, 27 Minn. 18;S.C. 6 N. W. Rep. 373;Martin v. Sprague, 29 Minn. 53;S.C. 11 N. W. Rep. 143. The sections in title 1, c. 81, Gen. St. 1866, in force when the mortgage was executed, regulated foreclosures of mortgages under powers of sale contained in them, and redemptions from such foreclosures. Chapter 121, Gen. Laws 1877, repealed that title, excepting sections 3, 4, 9, 11, 14, 15, and 17.

It may be inferred from the act, though it does not say so, that the purpose was to abolish foreclosures under powers of sale; and that the sections specified were retained merely because by section 32 their provisions are made applicable to foreclosures by actions which are regulated by title 2 of the chapter. Taking this to have been what the legislature intended, we are met by the objection that, while it might abolish such foreclosures as to all mortgages executed after its passage, it could not do so as to mortgages containing powers of sale executed prior to the passage. All the substantial provisions of the law regulating such foreclosures, in force when the mortgages were executed,-that is, all provisions not mere matters of form, but materially affecting the right to foreclose, under the powers or the rights of the parties, mortgagors and mortgagees, upon such foreclosures,-became part of the contract between the parties, and, so far as they were concerned, could not be impaired by future legislation. Heyward v. Judd, 4 Minn. 483, (Gil. 375;)Goenen v. Schroeder, 8 Minn. 387, (Gil. 344;)Carroll v. Rossiter, 10...

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    ...part of section 1 are not so mutually dependent that the section would not have been enacted without the proviso, as in O'Brien v. Krenz, 36 Minn. 136, 30 N.W. 458; Kellyville Coal Co. v. Harrier, 207 Ill. 624, N.E. 927, 99 Am. St. Rep. 240; State v. Chicago, B. & Q. R. Co., 195 Mo. 228, 92......
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