Carroll v. Rossiter

Decision Date01 January 1865
Citation10 Minn. 141
PartiesJAMES CARROLL vs. THOMAS ROSSITER.
CourtMinnesota Supreme Court

1. The power in said mortgage was only to be operative on and after the twenty-fourth day of June, 1861, upon the contingency that the note was not sooner paid. The statutes in force at the time of the maturity of the note must govern, and were alone contemplated in the power.

2. The certificate of purchase shows the terms of sale, and evidence and agreement extending time of redemption to September 14, 1864, and cannot be contradicted by parol or defeated by statutory construction.

3. The act of 1858, and also that of 1860, make the time to redeem, commence from the time of filing the notice of sale in register's office, or until such notice is filed (which is not done in this case), the time does not commence to run. Acts of 1860, p. 275; Comp. Stat. 646.

4. The amount of sale and interest thereon, being tendered, avoids the sale, and the defendant cannot be permitted to hold his alleged title and continue the cloud thereof.

5. The power of sale contained in the mortgage did not confer a vested right independent of the remedy. The vested right is the authority to sell according to the statute in force at the time the power is called into being. The remedy is the action or means given by law for the recovery or assertion of a right. The extension of the time for redemption does not impair the obligation of the contract. Stone v. Bassett, 4 Minn. [298]; Tomlin Law Dict., Letter R; Grimes v. Bryne, 2 Minn. [89]; James v. Stull, 9 Barb. 482; Morse v. Goold, 11 N. Y. 282; Butler v. Palmer, 1 Hill, 324; People v. Livingston, 6 Wend. 526; Sedgwick Const. Con. 187; 4 Cow. 384; 21 Pick. 174.

6. The power to sell does not refer to any particular law or remedy, but merely recognizes the right of the party to sell according to the statute or law existing at the time of default, so as to dispose of the equity of redemption or sale of the mortgage interest under the laws then in force.

7. The judgment is given for defendant, when by the law arising upon the facts it should have been for plaintiff.

Points and authorities for defendant in error: —

1. The note and mortgage having been executed in June, 1858, neither the act of July 29th, 1858, nor that of 1860, can affect the rights of the contracting parties, which are determined by the laws in force at the time. Comp Stat. 396, § 60; Heyward v. Judd, 4 Minn. [483]; Goenen v. Schroeder, 8 Minn. [387].

2. The law in force, June, 1858, (Comp. Stat. 645, § 11) provides that within twelve months from such sale the mortgagor may redeem, etc., etc., and section 12 of same page provides that the person making the sale shall complete the sale by making a deed, etc., unless the premises shall be redeemed as provided in the preceding section. No right of redemption existed from a statutory sale excepting by force of the law, which was made a part of the contract, and it is puerile to claim that the sheriff may either create or in any wise impair or affect rights by the recitals of his certificate. Comp. Stat. 645, §§ 11 and 12.

Smith & Gilman, for plaintiff in error.

Brisbin & Warner, for defendant in error.

WILSON, C. J.

The mortgage referred to in this action was made in June, 1858, and foreclosed (by advertisement) in September, 1861. The premises were sold by the sheriff of...

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