Clark v. Mitchell

• Decision Date: 03 December 1900
• Docket Number: Nos. 12,262 - (98).,s. 12,262 - (98).
• Parties: DAVID A. CLARK v. EDWARD C. MITCHELL and Another.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

81 Minn. 438

DAVID A. CLARK v. EDWARD C. MITCHELL and Another.¹

Nos. 12,262 - (98).

Supreme Court of Minnesota.

December 3, 1900.

Action in the district court for Hennepin county against Edward C. Mitchell and Horace E. Smith, trustees for Annie I. Mitchell, Mary Matthews and Emma Gregg, and as trustees under the will of L. C. Iungerich, and the will of Annie I. Mitchell, deceased, to set

aside a mortgage foreclosure sale. From an order, Harrison, J., sustaining a demurrer to the complaint, plaintiff appealed. Affirmed.

Charles J. Tryon, for appellant.

Stringer & Seymour, for respondents.

LOVELY, J.

Action to set aside a mortgage foreclosure sale by advertisement. Upon demurrer the trial court held that the complaint did not state a cause of action, from which order this appeal presents two questions: First. Was the foreclosure legally made by two parties to whom the assignment of the mortgage was executed as trustees? Second. Was the execution of the certificate of sale by the deputy sheriff in his own name as such deputy valid?

The facts set forth in the complaint may be briefly compressed in the following statement: Louis C. Iungerich, of Philadelphia, died testate, having in his will provided that three shares of his estate should be set aside and held in trust by his executors for the benefit of his three daughters, Annie I. Mitchell, Mary Matthews, and Emma Gregg, which property was to be securely invested for their benefit, and as beneficiaries they were to have the income thereof, each of her respective share, during her lifetime, and after her decease the principal share was to be paid over in such manner as such deceased daughter should by her will have directed. This will was duly admitted to probate and properly recorded in this state. In furtherance of its provisions, the executors, for the purpose of investment, made a loan to one Wales, and accepted in security therefor a mortgage upon the property in question, of which he was the owner. Afterwards, by proper assignment, which was duly recorded, the executors transferred the mortgage to Edward C. Mitchell and Louis I. Smith, as trustees for the three daughters above named, which the complaint alleges to have been so assigned "under the provision of said will, and to carry out the terms thereof, and of an order of the orphans' court of the city of Philadelphia theretofore made in enforcement and execution of said will."

Subsequently Mrs. Mitchell died testate at St. Paul, having by her will made provision for the disposition of her share in the Iungerich estate, and appointed her husband, Edward C. Mitchell, trustee for the disposition of the property bequeathed to her by the will of her father. The will of Mrs. Mitchell was duly admitted to probate in Ramsey county. It may be stated, in passing, that Edward C. Mitchell, who was the trustee named in the will of his wife, was the same person who was also the assignee of the mortgage in trust for the three daughters. The mortgaged property, previous to the commencement of this action, was sold to the plaintiff, but the mortgage debt was not paid, and upon default, after the death of Mrs. Mitchell, the assignees of the mortgage, as trustees, instituted foreclosure proceedings by advertisement, signing notices, proper in form, as Edward C. Mitchell and Louis I. Smith, trustees for Annie I. Mitchell, Mary Matthews, and Emma Gregg. Upon this notice of foreclosure sale, at the proper time, one Anderson, deputy sheriff of Hennepin county, sold the property, under the power therein, to satisfy the mortgage, and by certificate of sale transferred the same to the trustees in his own name as such deputy, and not in the name of the sheriff of Hennepin county. Within the year provided by statute for redemption, this action was brought to set aside the foreclosure sale upon the grounds stated above.

The contention of the plaintiff is that the death of Mrs. Mitchell, and her will appointing a trustee for the disposition of her interests, prohibited the assignees of the mortgage from giving the notice of foreclosure, upon the claim that her interest in such mortgage passed by her death and the probate of her will to her beneficiaries named therein, and that her trustees under the assignment could not do for her that which could not have been done in her name after her death, had the mortgage been made directly to her. The court below held, and we think correctly, that the trust created by this assignment, so far as it affected the right to foreclose the mortgage, had not determined. It is true that the foreclosure by advertisement of a mortgage cannot be made in the name of the deceased mortgagee (Bausman v. Kelley, 38 Minn. 197, 36 N. W. 333); but the application of this rule to the conditions in this case is not apparent, for the reason, at least, that it does not appear that the trustee owners of the legal estate had fully executed their trust under the original will.

The...