Duncan v. Menard

• Decision Date: 29 November 1884
• Citation: 21 N.W. 714,32 Minn. 460
• Parties: DUNCAN v MENARD AND OTHERS.
• Court: Minnesota Supreme Court

32 Minn. 460

21 N.W. 714

DUNCANvMENARD AND OTHERS.

Supreme Court of Minnesota.

Filed November 29. 1884.

Appeal from a judgment of the district court, Hennepin county.

Rea, Kitchell & Shaw, for respondent, D. D. G. Duncan.

Worrall & Jordan and C. J. Bartleson, for appellants, Joseph Menard and others.

DICKINSON, J.

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, which is as follows: “Section 1. Every mortgage of real estate containing therein a power of sale, upon default being made in any condition of such mortgage, may be foreclosed by advertisement within ten years after the maturity of such mortgage. *** Sec. 2. This act shall take effect and be in force one year from and after its passage.” The mortgage matured in 1859. The foreclosure was commenced by the first publication of the notice of sale on the sixth 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 seventh day of March, 1872, and not on the sixth 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 on record, 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. 153, (Gil. 138.) 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 seventh 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. Waterloo, 14 Wis. 378;State v. Bailey, 16 Ind. 46; Pierson v. Baird, 2 Greene, (Iowa,) 235. The destruction by fire of documents in the office of the secretary of state has made it difficult to ascertain the precise time, without more investigation than we deem necessary for the purposes of this case, in the absence of any suggestion that the statute was not regularly and reasonably published. The certificate of the secretary of state appended to the published general laws of that year, which he was required to make, and which, as we understand, is made after the final corrected proof of the state...