Burke v. Backus

• Decision Date: 29 October 1892
• Citation: 53 N.W. 458,51 Minn. 174
• Parties: Frank Burke, Jr., et al. v. Henry M. Backus, et al
• Court: Minnesota Supreme Court

53 N.W. 458

51 Minn. 174

Frank Burke, Jr., et al. v. Henry M. Backus, et al

Supreme Court of Minnesota

October 29, 1892

October 18, 1892, Argued

Appeal by defendants, Henry M. Backus, Edward L. Bradley, Alva W Bradley and the American Loan and Trust Company, from a judgment of the District Court of St. Louis County, Stearns J., entered May 13, 1892, adjudging that the plaintiffs Frank Burke, Jr., Rufus P. Edson, and Wallace Warner, are the owners of the land in dispute.

The facts in this case are the same as those in Backus v Burke, 48 Minn. 260. The defendants in that case, before it was decided, brought this action to remove the cloud of the Tischer foreclosure, and to have the title to the property in dispute adjudged in them. The District Court, before the decision of this court in Backus v. Burke, made findings adjudging the defendants to be the owners of the land, but after the decision in Backus v. Burke, on motion, amended its findings to conform to the decision in that case, and ordered judgment in favor of the plaintiffs. Judgment was so entered, and defendants appeal. The discussion here was substantially a reargument of the questions decided in the previous case, and they are not restated here.

Judgment affirmed.

Wm. W. Billson, for appellant.

The respondents are barred by Laws 1883, ch. 112, from questioning the validity of the sale. That act provides that no mortgage sale under a power shall be held invalid, or set aside, by reason of "any defect in the notice thereof," etc., after five years from the date of such sale. What constitute defects in the notice of sale? In a broad, but perfectly legitimate and conventional sense, the notice may be defective, although faultless in form and contents; there may be defects in its operation or legal efficiency. A legal notice which is ineffectual is certainly defective. By the commonest usage, an ultimate act or proceeding is characterized as defective when it is made inoperative by irregularities or omissions in the proceedings essentially preliminary to it. Wistar v. Foster, 46 Minn. 484; Sanborn v. Cooper, 31 Minn. 307. The failure to record the assignment was, within the commonest forms of speech, a defect in the notice of sale.

The limitation act of 1883 is available to defendants, though not urged in the court below by demurrer, answer or otherwise. Kennedy v. Williams, 11 Minn. 314, (Gil. 219;) McArdle v. McArdle, 12 Minn. 98, (Gil. 53;) Davenport v. Short, 17 Minn. 24, (Gil. 8;) Trebby v. Simmons, 38 Minn. 508; Humphrey v. Carpenter, 39 Minn. 115; Burk v. Western Land Assn., 40 Minn. 506.

The right to maintain this suit for equitable relief has been lost by laches. Seventeen years elapsed between the date of the foreclosure and the commencement of the action to set it aside. This delay was not excused or explained, and is sufficient to justify the claim of laches. Learned v. Foster, 117 Mass. 365; Munn v. Burgess, 70 Ill. 604; Broderick's Will, 21 Wall. 503; Smith v. Talbot, 18 Tex. 774.

Edson & Hanks, J. W. Bull, and Cash & Williams, for respondent.

The limitation prescribed by the Act of 1883 has clearly no application to this case. This is not a case of defective or irregular exercise of a right, but rather one where the conditions for the exercise are wholly wanting. Under the rule claimed by appellant, a mortgagee, who has never recorded his mortgage, could foreclose, and the proceedings be within the purview of the act. This case is even stronger than the cases of Bausman v. Kelley, 38 Minn. 197; and Welsh v. Cooley, 44 Minn. 446.

There are no laches shown in this case. Every element constituting laches is wanting. No issue of laches was raised or attempted, either by the pleadings or the evidence. Before a party is estopped by reason of delay from asserting his rights, there must be some fault on his part. Bausman v. Faue, 45 Minn. 412. In the case at bar, the plaintiffs own the legal title, unless divested by the foreclosure, and can enforce their rights at any time, until barred by the statute of limitations. Morris v. McClary, 43 Minn. 346; Stocking v. Hanson, 35 Minn. 207; Bausman v. Kelley, 38 Minn. 197; Sanborn v. Eads, 38 Minn. 211; Welsh v. Cooley, 44 Minn. 446.

OPINION

Mitchell, J.

The facts in this case are the same as in Backus v. Burke, 48 Minn. 260, (51 N.W. 284,) the only difference being that the position of the parties as plaintiff and defendant is reversed.

The briefs of counsel consist mainly of a reargument of the question decided in that case, defendants' counsel urging that that decision was erroneous, and ought to be overruled. In view of the ability of counsel, and his evident conviction that the decision was wrong, we have re-examined the question with special care, but see no reason to change our views, or to doubt the correctness of our former opinion.

The question was so fully considered by Justice Collins in the other case that it is unnecessary to review the discussion here, beyond pointing out some errors into which we think counsel has fallen.

Taking some general expressions of the court, separated from the facts with reference to which they were uttered, counsel assumes that we held that, to entitle a party to exercise a power of sale on a mortgage, everything must be of record necessary to show that the party exercising the power has the right to do so; thus reading into the statute by implication something not contained in its language.

We have never decided that the statute was as broad as this. On the contrary, we have always held that all that the statute required to be recorded was the mortgage and the assignments, if any. Thus in Baldwin v. Allison, 4 Minn. 25, (Gil. 11,) it was held that, when the power was exercised by an administrator, evidence of the death of the mortgagee and of the appointment of an administrator was not within the statute, because the devolution of title upon the personal representative by operation of law was not an "assignment," within the meaning of the act; that it had reference only "to such assignments as are the subject of contract, and are made by the act of the parties." Again, in Morrison v. Mendenhall, 18 Minn. 232, (Gil. 212,) it was held that, where an assignment of a mortgage had been executed by an attorney, it was not necessary for his letters of attorney to be recorded, because the statute only required the mortgage and assignments to be recorded. In view of the manifest purpose and policy of the statute, this may have been too strict and narrow a construction; but, having now become a rule of property, it must be adhered to. In that case, however, the policy of the statute and the construction placed upon it were very clearly but guardedly stated as follows: "The manifest purpose of this requirement of the statute was to make the contents of the mortgage, and, as far as the statute goes, to make the title of the mortgagee, a matter of record; * * * and as it was, for such purposes, made necessary that all assignments shall be recorded, it follows that they must be in writing. A mere equitable or parol assignment would not answer."

The fundamental error, as it seems to us, into which counsel has fallen, results from a misapplication of the expression "assignments by operation of law." He assumes that because by payment of the debt, as security for which Tischer had assigned the mortgage to the bank, he...