Casserly v. Morrow
| Decision Date | 26 April 1907 |
| Docket Number | 15,090 - (54) |
| Citation | 111 N.W. 654,101 Minn. 16 |
| Parties | JOHN CASSERLY v. JAMES J. MORROW and Others |
| Court | Minnesota Supreme Court |
Appeal by defendants from an order of the district court for Redwood county, Webber, J., overruling a demurrer to the complaint. Affirmed.
Venue -- Action to Annul Mortgage Foreclosure.
An action to set aside a mortgage foreclosure and sale of the mortgaged premises and to redeem from the mortgage is a local action, which must be brought in the county in which the land is situated.
Mortgage -- Foreclosure by Assignee.
A party claiming to be the assignee of a mortgage must have a recorded legal assignment thereof before he can foreclose it by advertisement.
Mortgage -- Assignment without Name.
An instrument purporting to be an assignment of a mortgage, in which no assignee is named, but a blank space left for his name, is, until the blank is legally filled, a nullity. If however, the name of the assignee is afterwards inserted in the instrument by the authority of the mortgagee, express or implied from circumstances, and then recorded, it is a valid assignment, and the assignee may foreclose the mortgage by advertisement.
Notice of Foreclosure.
Where the mortgaged premises consist of two separate farms, each of which is occupied by a different party, a notice of foreclosure by advertisement must be served on each.
James A. Kellogg, for appellants.
C. W Gilmore and Joe Kirby, for respondent.
Appeal from an order of the district court of the county of Redwood overruling the defendants' general demurrer to the complaint herein.
The action was originally commenced in the district court of the county of Redwood to set aside a mortgage foreclosure and sale of the mortgaged premises, situated in that county, and to redeem from the mortgage. Upon the demand and affidavit of the defendants the clerk of the court transmitted all the files and papers in the cause to the district court of the county of Hennepin. The defendants then demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The plaintiff then moved the district court of the county of Hennepin to remand the case to the district court of the county of Redwood, and it was so remanded, on the ground that it was a local action, which was properly triable in the county where the mortgaged premises were situated. The plaintiff then noticed the cause for hearing on the demurrer before the district court of the county of Redwood. The defendants appeared specially and objected to the hearing, on the ground that the court had no jurisdiction to hear the matter, for the reason that the action was still pending before the district court of the county of Hennepin. This objection and the demurrer were overruled.
The first objection here urged by the defendants is that the court erred in overruling their objection to the hearing on the demurrer. Flowers v. Bartlett, 66 Minn. 213, 68 N.W. 976. The objection is without merit, for the action is one to establish the right to redeem from a mortgage on lands situated in the county of Redwood, and, as an incident to such relief, to set aside a foreclosure sale of the lands. It is, then, an action to determine an estate or interest in the land, and triable in the county where the real estate is situated. It is just as clearly so as is an action to foreclose a real estate mortgage. R.L. 1905, § 4089; Kommer v. Harrington, 83 Minn. 114, 85 N.W. 939.
The allegations of the complaint, which are necessary to be considered in determining the question whether or not the complaint states a cause of action, are to the effect following: On December 30, 1901, A. J. Harrington was the owner in fee of the land in question, namely, the southwest 1/4 of section 24 and the west 1/2 of the northeast 1/4 of section 25, all in township 111, range 39, and on that day he executed a mortgage on the whole thereof to the Minneapolis Threshing Machine Company to secure the payment of $1,028, which was duly recorded on January 4, 1902. Thereafter, and on July 2, 1902, Harrington by warranty deed conveyed the southwest 1/4 of section 24 to Moses Mitchell, and the deed was duly recorded on August 25, 1902, who, on July 2, 1902, gave a mortgage thereon, with other land then owned by him, to the plaintiff herein, to secure the payment of $4,472. The mortgage was duly recorded on August 9, 1902. Default was made in the payment of this last-named mortgage, and it was duly foreclosed, and the land therein described duly sold on foreclosure sale January 10, 1905, to the plaintiff, for $4,961.12, being the amount then due on the mortgage and costs of foreclosure. The land included in the plaintiff's mortgage is of the value of $6,000, and the value of the other land does not exceed $2,000. On November 3, 1902, Harrington by warranty deed conveyed the west 1/2 of the northeast 1/4 of section 25 to Peter T. Casserly. His deed was recorded December 17, 1902, and before the commencement of this action he conveyed the land to the plaintiff.
On February 25, 1903, a certain paper purporting to be an assignment by the Minneapolis Threshing Machine Company of its mortgage to the defendant James J. Morrow was recorded in the office of the register of deeds of the proper county. The Minneapolis Threshing Machine Company never in fact at any time executed an assignment of its mortgage to Morrow, but, on the contrary, a paper in blank, which contained the name of no assignee, was signed and acknowledged by the Minneapolis Threshing Machine Company, and thereafter some one, not the mortgagee, but unknown to the plaintiff, the mortgagor, and the mortgagee, inserted the name of the defendant Morrow in the paper and filed it for record. Morrow, pursuant to such supposed assignment, attempted to foreclose the mortgage by advertisement, and on September 26, 1903, a purported foreclosure sale of the different tracts of land described in the mortgage was made in gross to Morrow for the sum of $1,221.43. Thereupon a sheriff's certificate of sale of the lands was made and recorded September 29, 1903.
At the time of such attempted foreclosure the two tracts of land described in the mortgage were separate and distinct farms. The southwest 1/4 of section 24 was occupied by Mitchell, the owner thereof, by his tenant,...
To continue reading
Request your trial