Dunning v. McDonald

• Decision Date: 27 June 1893
• Citation: 54 Minn. 1
• Parties: GENEVIEVE M. DUNNING <I>et al.</I> <I>vs.</I> MITCHELL W. McDONALD.
• Court: Minnesota Supreme Court

Page 1

54 Minn. 1

GENEVIEVE M. DUNNING et al. vs. MITCHELL W. McDONALD.

Supreme Court of Minnesota.

Argued June 16, 1893.

Affirmed June 27, 1893.

Appeal by defendant, Mitchell W. McDonald, from an order of the District Court of Carlton County, O. P. Stearns, J., made November 7, 1892, overruling his demurrer to the complaint.

The plaintiffs, Genevieve M. Dunning, William R. McMahan, Minnie E. Lee, William A. Kennedy and Emma K. Morris, brought this action September 10, 1892, against Mitchell W. McDonald, the Duluth and Superior Investment Company, and the St. Louis Investment Company, to foreclose a mortgage given by McDonald July 8, 1890, to Genevieve M. Dunning, upon the east half of the southwest quarter of section fourteen, (14,) T. 48, R. 16, in Carlton County. He bought this land of her, and gave the mortgage to secure $3,500, part of the purchase money. The mortgage contained a power to sell the land on default in payment, and out of the proceeds to satisfy the debt. On March 31, 1891, Genevieve M. Dunning assigned to William A. Kennedy two-sixths interest in the mortgage and debt. The instrument of assignment was dated that day, and was recorded April 29, 1891, in the Registry of Deeds of Carlton County. Since the same day assigned to Emma K. Morris, Minnie E. Lee and William R. McMahan each another sixth interest, but their assignment were not recorded until after May 11, 1891. The complaint stated that Genevieve M. Dunning had attempted to foreclose the mortgage in March, 1891, under the power therein, but the notice of sale was signed by her alone, and a sale was made to her thereunder on May 11, 1891, after the assignment to Kennedy had been recorded and the sale was therefore void. But the sheriff made the sale at that day, and she received the certificate, and had it recorded, believing lieving at the time that the foreclosure was valid. The complaint stated that the two investment companies had, or claimed to have some interest in, or lien upon, the land junior and subject to the mortgage. The prayer of the complaint was, that the prior foreclosure under the power, be adjudged invalid, and the certificate of sale canceled, and that the land be sold, and the proceeds applied upon the debt, and that McDonald be adjudged to pay any deficiency, and that plaintiffs have such further relief as to the court should seem equitable.

To this complaint McDonald demurred, on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was overruled, and he appeals.

Cash, Williams & Chester, for appellant.

J. L. Washburn, for respondents.

GILFILLAN, C. J.

Defendant McDonald executed to plaintiff Dunning a mortgage upon real estate, with the usual power of sale dated July 8, 1890, recorded July 19, 1890. March 28, 1891, the mortgagee began to foreclose under the power, by notice in her name, as mortgagee, first published on that day. March 31, 1891, she duly assigned to one of the other plaintiffs an undivided one-sixth of the debt and mortgage; to another, an undivided one-sixth; to another, an undivided one-sixth; to another, an undivided two-sixths; leaving an undivided one-sixth in herself. One of these assignments was recorded April 29, 1891, before the last publication of the notice of sale; the others, not till after...