Cutting v. Patterson
| Decision Date | 06 February 1901 |
| Citation | 85 N.W. 172,82 Minn. 375 |
| Parties | CUTTING et al. v. PATTERSON. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, St. Louis county; J. D. Ensign, Judge.
Action by Amalia Cutting and others against Peter Patterson. Verdict for defendant. From an order denying a new trial, plaintiffs appeal. Reversed.
Held, on the facts appearing in this case, that the mortgagor, as the person actually occupying the mortgaged premises, was entitled to notice of the foreclosure under a power prescribed in Gen. St. 1894, § 6032. Frank Cutting, for appellants.
Francis W. Sullivan, for respondent.
The decision of this case depends upon a construction of that part of Gen. St. 1894, § 6032, reading as follows: ‘In all cases, a copy of such notice shall be served in like manner as a summons in civil actions in the district court, at least four weeks before the time of sale, on the person in possession of the mortgaged premises, if the same are actually occupied.’ The mortgage in question was foreclosed under a power, but no notice was served upon the mortgagor or any other person; the affidavit filed being to the effect that the premises were at the time of the foreclosure wholly vacant and unoccupied. Whether they were or not is the salient question. The mortgaged property consisted of four small lots or tracts of ground in the city of Duluth, 100 by 140 feet in size in the aggregate, equal to two full lots, fronting upon West Second street, which street was wholly unused, and extending back to a public alley 20 feet in width. Northerly and across the alley were two other lots, taken together 100 by 140 feet, fronting upon West Third street. At the time the mortgage was given, the alley was unopened, and the entire premises were inclosed in a fence, as a single tract. The mortgagor resided in a house upon one of the lots facing upon Third street, and in the rear of the other lot, facing upon Third street, was a barn used by him. The property mortgaged was at that time used for a garden by the mortgagor. Subsequently, and before the foreclosure, the alley was opened and graded, and the fence changed so that there were two inclosures, one fronting upon Third street, and one-the mortgaged portion-fronting upon Second street; the fences in the rear of each tract being placed along the lines of the alley. The fence in the rear of the northerly parcel, on which the mortgagor dwelt, was connected with the barn, and at just this point was a small gate opening upon the alley. Almost exactly opposite, across the alley, was another gate, through which one might pass through the fence surrounding the mortgaged land. As before stated, this particular tract of land was used by the mortgagor for garden purposes when the mortgage was given, and it continued to be so used, in the proper season of each year thereafter, and also subsequent to the foreclosure, which was commenced in January, 1899; the mortgagor continuing to reside in the dwelling house before mentioned until his death, in October, 1899. It stands admitted that the foreclosure proceedings were valid in all other respects. It is contended by these plaintiffs, who are the heirs at law of the mortgagor, that under the conditions existing at the time of the foreclosure proceedings the statutory notice should have been served upon the mortgagor, as the person in actual occupation of the mortgaged premises. Upon the facts shown, and as we construe the statute, this contention is correct. It is quite clear that in using the quoted language a distinction was attempted to be made between a person in possession simply, and a person who not only had possession, but was in actual occupancy. In the one case notice was necessary; in the other, it was not. While the power to foreclose is derived from the convention of the parties, the proceedings in the exercise of that power, so far as regulated by statute, are wholly statutory, and in order to constitute a valid foreclosure all of these statutory requirements must be complied with, substantially. The words in question cannot be construed narrowly, so as to defeat the real object intended. The purpose of...
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Ranchers Exploration and Development Co. v. Anaconda Co.
...Churchill v. Onderdonk, 59 N.Y. 134, 136; Marsh v. Ne-ha-sa-ne Park Ass'n, 18 Misc. 314, 42 N.Y.S. 996, 1000; Cutting v. Patterson, 82 Minn. 375, 85 N.W. 172, 173; Rosenfeld v. United States, 2 Cir., 66 F. 303, 304, 13 C.C.A. 46 See Whiting v. Straup, 17 Wyo. 1, 95 P. 849 (1908). See also G......
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Compart v. Wolfstellar
...used in a statute in opposition to "virtual" or "constructive," and calls for an open, visible occupancy. Cutting v. Patterson , 82 Minn. 375, 380, 85 N.W. 172, 173 (1901). "Whether land is 'actually occupied' is primarily a question of fact." Pipkorn v. Dunn , 408 N.W.2d 705, 707 (Minn. Ap......
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Thomas v. Flynn, 34662
...who occupies; especially a tenant in possession of property, as distinguished from the actual owner. * * *' Quoting from Cutting v. Patterson, 82 Minn. 375, 85 N.W. 172, "Actual occupancy' is defined as an open, visible occupancy, as distinguished from the constructive possession which foll......
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Jurgensen v. Ainscow
...it is apparent the plaintiffs intended to appropriate such portion of the defendants' land to that useful purpose. In Cutting v. Patterson, 82 Minn. 375, 85 N.W. 172, it was said that actual possession means possession in fact, effected by actual entry upon the premises and actual occupancy......