Holmes v. Crummett
| Decision Date | 20 November 1882 |
| Parties | James B. Holmes v. John O. Crummett |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from a judgment of the district court for Becker county, where the action was tried by Stearns, J. The case is stated in the opinion.
Judgment affirmed.
C. D Kerr, for appellant.
In the foreclosure of a mortgage by advertisement all the essential requirements of the statute must be strictly pursued. Dana v. Farrington, 4 Minn. 335, (433;) Lee v Mason, 10 Mich. 403; Doyle v. Howard, 16 Mich 261; Sherwood v. Reade, 7 Hill, 431; Williamson v. Doe, 7 Blackf. 12. The failure to serve the notice required by Gen. St. 1878, c. 81, § 5, rendered the foreclosure utterly void. Forster v. Hoggart, 15 Ad. & El. 155; Williams v. Peyton, 4 Wheat. 77; Shillaber v. Robinson, 97 U.S. 68; Low v. Purdy, 2 Lansing, 422; Cohoes Co. v. Goss, 13 Barb. 137; Stanton v. Kline, 16 Barb. 9; Cole v. Moffitt, 20 Barb. 18; Robinson v. Ryan, 25 N.Y. 320.
Tyler & Lewis, for respondent, cited, contra, Atkinson v. Duffy, 16 Minn. 30, (45;) Menard v. Crowe, 20 Minn. 402, (448;) Golcher v. Brisbin, 20 Minn. 407, (453;) Warren v. Foreman, 19 Wis. 35; Lloyd v. Frank, 30 Wis. 306
Action by mortgagor against mortgagee to set aside a statutory foreclosure of a mortgage, or, in the event of such relief being denied, to redeem from the mortgage. The only question involved is whether the foreclosure by advertisement was invalid as to this plaintiff, the mortgagor, by reason of the failure to serve notice of foreclosure sale upon one Rew. The land consists of about 78 acres, upon which was a dwelling-house and stable. At the time of the foreclosure proceedings, Rew was residing in the house and occupying the stable, under a lease from the plaintiff; and by sufferance, also, said lessee used some pasture land upon the premises. About ten acres of the land was under cultivation by the plaintiff, although he did not reside upon the land. Notice of the foreclosure sale was duly served upon plaintiff, but no notice was served upon Rew. Otherwise the foreclosure is not claimed to have been irregular. No prejudice is alleged or shown, as respects this plaintiff, from the failure to serve notice upon Rew. Judgment was rendered in favor of the defendant. The statute, in addition to a prescribed publication, requires notice of the foreclosure sale to be served "on the person in possession of the mortgaged premises, if the same are actually occupied." Gen. St. 1878, c. 81, § 5.
It is a general principle that compliance with the prescribed statutory requirements is necessary to make a valid statutory foreclosure; and the statute must undoubtedly be observed as to all steps in the proceeding which are calculated to protect the interests of the party whose rights are in question; and the omission of any required act which the court can see,...
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