Hathorn v. Butler
| Decision Date | 14 June 1898 |
| Citation | 75 N.W. 743,73 Minn. 15 |
| Parties | HATHORN v BUTLER ET AL. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
(Syllabus by the Court.)
1. To entitle a party to give a notice of foreclosure of a mortgage on real property under a power contained in said mortgage, or to make such foreclosure, it is required, under the third subdivision of section 6029 of the General Statutes of 1894, that all assignments of such mortgage, if any there are, have been recorded; and, further, it is essential, under the provisions of section 6033, that in the notice the name of each assignee shall be specified.
2. A mortgagee duly assigned a mortgage to B., and this assignment was placed on record. The money paid for this assignment belonged to M., and the assignment was made to B., with his consent, and at the request of M. Then B. in due form executed and delivered an assignment of the mortgage to M., but this instrument was not placed on record. M. then caused this mortgage to be foreclosed, under the power, in the name of B. as assignee, and at the sale the premises were bid in in B.'s name, and to him the sheriff's certificate of sale was issued. Before the year of redemption expired, the owner of the property learned of the unrecorded assignment, and brought an action to set aside the sale, the certificate, and the record of the latter. Held, under these facts, that the foreclosure was invalid as to such owner, and that B. acquired no rights in the mortgaged property by virtue of the sale and certificate.
Appeal from district court, Hennepin county; J. F. McGee, Judge.
Action by Mary L. Hathorn against Charles H. Butler and Mary E. Mann to cancel an assignment of a mortgage, and to set aside a sheriff's certificate of sale. From an order of entry of judgment for defendants, plaintiff appeals. Reversed.
J. M. Dunn, for appellant.
Wm. H. Hallam, for respondents.
When the mortgage in question was foreclosed under the power therein contained in the name of defendant Butler, as assignee, he had no interest, pecuniary or otherwise, in the same, although his title of record appeared perfect, there having been placed upon record an assignment of the mortgage from the original mortgagee to him. And this assignment and the record of the same were stated and specified in the notice of foreclosure printed and published by Butler under the provisions of Gen. St. 1894, § 6033. In fact, the defendant Mann had paid, of her own money, the amount required to procure the assignment from the mortgagee, and such assignment had been made to Butler at Mrs. Mann's request, and with his consent. Then Butler (requested so to do by defendant Mann) executed, acknowledged, and delivered to her an assignment of the mortgage in due form, but this assignment was not put upon record. It was in Mrs. Mann's possession when the foreclosure proceedings were commenced, and was by her counsel produced at the trial. At the foreclosure sale the premises were bid in by Butler, and the certificate of sale, executed and delivered by the sheriff, contained his name as the purchaser. The plaintiff, who was the owner of the premises at the time of the sale, subject to the mortgage, learned during the year of redemption that Butler had assigned the mortgage prior to the foreclosure, and...
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Jackson v. Mortgage Electronic Reg. Sys., No. A08-397.
...indebtedness. For this reason, plaintiffs argue that MERS cannot hold legal title. Plaintiffs point to Hathorn v. Butler, 73 Minn. 15, 75 N.W. 743 (1898) (Collins, Loren, J.), in support of their argument. In Hathorn, Mary Mann asked her brother, Charles Butler, to act as mortgagee on her b......
- Hathorn v. Butler
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Clarke v. Mitchell
...that these requirements have been most rigidly and unqualifiedly enforced. Dunning v. McDonald, 54 Minn. 1, 55 N. W. 864;Hathorn v. Butler, 73 Minn. 15, 75 N. W. 743. It has also been held in the same line, for clear and obvious reasons, that equitable interests in beneficiaries, such as wo......
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D.S.B. Johnston Land Co. v. Mitchell
...who attempts to exercise the power of sale in a mortgage must have and hold the record title of such mortgage. See, also, Hathorn v. Butler, 73 Minn. 15, 75 N. W. 743, decided under a statute the same as ours above quoted. The conclusion is, we think, inevitable that the only effect therefo......