Eliason v. Sidle

• Citation: 63 N.W. 730,61 Minn. 285
• Decision Date: 07 June 1895
• Docket Number: 9298--(208)
• Parties: GUSTAV ELIASON v. HENRY G. SIDLE and Others
• Court: Minnesota Supreme Court

63 N.W. 730

61 Minn. 285

GUSTAV ELIASON v. HENRY G. SIDLE and Others

Nos. 9298--(208)

Supreme Court of Minnesota

June 7, 1895

Action in the district court for Hennepin county by Gustav Eliason against Henry G. Sidle and others. The complaint contained three causes of action, each seeking to recover for an excessive amount of attorney's fees charged and retained by defendants out of the proceeds of the foreclosure sale of certain lots, the ownership of which at the date of the sale was in plaintiff, subject to the mortgages which defendants foreclosed. The other facts constituting plaintiff's causes of action are stated in the opinion. From an order Russell, J., overruling demurrers of defendants to the complaint, they appealed. Affirmed.

Order affirmed.

Lawrence Truesdale & Corriston, for appellants.

Smith Pulliam & Smith, for respondent.

COLLINS J. MITCHELL, J., concurring.

OPINION

COLLINS, J.

1. The primary question in this case is whether, under the terms of the mortgages, alike in form, the attorney's fees were to be $ 25 for each foreclosure, and without regard to the number of lots embraced in such proceedings, or the fees were to be $ 25 for each lot, whether one or many were included in the foreclosure proceedings. There were three mortgages, each upon a number of lots, and each with a provision that in case of default in payment the mortgage might be foreclosed agreeably to the statute, and out of the moneys arising from the sale the mortgagee might "retain the principal and interest then accrued on the sum or sums so elected to be foreclosed for, together with all costs and charges, including twenty-five ($ 25) dollars attorney's fees for foreclosing the mortgage in each and every such case." Admitting that each of these three mortgages amounted to a separate and distinct mortgage on each lot mentioned therein to secure separate and distinct sums of money as specified, as was held in respect to the mortgage considered in Hull v. King, 38 Minn. 349, 37 N.W. 792, it does not follow that when the mortgage was foreclosed as to a number of lots an attorney's fee of $ 25 for each could be charged up and included among the proper costs and charges. We think the language used is capable of but one construction, which is that the amount of attorney's fees to be properly charged was made dependent or contingent on the number of foreclosures which became necessary, and not, as claimed by counsel for appellants, on the number of lots against which the mortgagee was compelled to proceed. If we adopt the latter view, one of the mortgages, by which 28 lots were mortgaged to secure the principal sum of $ 4,600, provided for an attorney's fee of $ 700; another, 27 lots, mortgaged for $ 3,500, for a fee of $ 675; and the other, 16 lots, mortgaged for $ 1,325, for a fee of $ 400, -- in case there was a single foreclosure of each mortgage as to all of the lots embraced in each. That such was the intention of the parties seems beyond belief, and that such enormous and outrageous fees ought not to be allowed goes...