Duncan v. Cobb
| Decision Date | 29 November 1884 |
| Citation | 32 Minn. 460 |
| Parties | D. D. G. DUNCAN <I>vs.</I> FRANCIS H. COBB, impleaded, etc. |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county, to determine the adverse interest of defendants in vacant lots in Minneapolis. At the trial, before Lochren, J., without a jury, it appeared that on December 17, 1857, defendant Cobb was owner in fee of the lots, and on that day mortgaged them to plaintiff, the mortgage containing the usual power of sale and being duly recorded. The plaintiff's title rests on proceedings for foreclosure of this mortgage by advertisement. The first publication of notice of sale was March 6, 1872, and the notice was regularly published for the statutory six weeks, and the sale took place pursuant to the notice on April 20, 1872, the plaintiff becoming the purchaser, and receiving the sheriff's certificate, which was recorded April 22, 1872. The statutory year for redemption had long since expired when the action was brought.
It was objected that the foreclosure proceedings were not begun or completed within the period limited by Laws 1871, c. 52, quoted in the opinion. The objections were held not well taken, and judgment was ordered and entered for the plaintiff, from which the defendant Cobb appeals.
Rea, Kitchel & Shaw, for respondent.
The only question presented in this case is as to whether the foreclosure by statutory advertisement and sale, through which plaintiff's alleged title was derived, was invalid by reason of the limitation prescribed by the act of March 6, 1871, (Laws 1871, c. 52,) which is as follows: The mortgage matured in 1859. The foreclosure was commenced by the first publication of the notice of sale on the 6th day of March, 1872, and the proceedings continued until April following, when the sale was made. The act first became operative as a limitation on the 7th day of March, 1872, and not on the 6th day of that month. The day of the passage of the act should be excluded from the computation of time elapsed before the act went into operation.
The learned court, whose decision is in review, considered that, the foreclosure proceedings having been commenced before the limitation took effect, the foreclosure was valid. We are unable to so construe the statute. When this act had been passed, approved, and published, it became a statute of the state, and all persons are to be thereafter presumed to have had notice of its provisions. Its operation as a law of limitation was postponed for a year from the time of its enactment, but its existence in the mean time as a perfected statute, effectual as notice of its prospective operation, must be regarded as determined in this court by the decision in Stine v. Bennett, 13 Minn. 138, (153.) See, also, cases cited. The apparent purpose of the legislature in allowing a year to elapse before the act should become operative, was, as in the legislation considered in Stine v. Bennett, to afford opportunity to all having existing rights of foreclosure to pursue the remedy before the bar of the statute should intervene. The effect of the act as a statute of limitations is not different from what it would have been if it had declared that it should take effect at the time of its passage, but had designated the 7th day of March, 1872, as the time when the new limitation should become operative.
The time when the act, by its publication, came to have the effect above indicated, is a matter of which courts must take judicial notice. Berliner v. Town of Waterloo, 14 Wis. 378; State v. Bailey, 16 Ind. 46; Pierson v. Baird, 2 Greene, (Iowa,) 235. The...
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