Johnson v. Cocks

• Decision Date: 13 December 1887
• Citation: 37 Minn. 530
• Parties: FRANK L. JOHNSON and another <I>vs.</I> CHARLES P. COCKS.
• Court: Minnesota Supreme Court

Page 530

37 Minn. 530

FRANK L. JOHNSON and anothervs.

CHARLES P. COCKS.

Supreme Court of Minnesota.

December 13, 1887.

Appeal by plaintiffs from a judgment of the district court for Hennepin county, where the action was tried before Rea, J., without a jury. Upon defendant's motion, before answering, the court struck out of the complaint the allegations as to inadequacy of price and of the failure to file an affidavit of costs and disbursements.

Cross & Carleton, for appellants.

John R. Van Derlip, for respondent.

GILFILLAN, C. J.

Action to set aside a foreclosure of a mortgage, under the power of sale contained in it. Two matters are charged as irregularities in the sale: First, that the place of sale mentioned in the notice of sale was indefinite; second, that, while the mortgage was of the entire interest in the two lots owned by plaintiff, the notice of sale described the mortgage as upon an undivided half of those lots. The description in the notice of sale was: "The undivided half of lots two (2) and three (3,) in block two, (2.) Lot eight, (8,) in block four, (4.) Lot six, (6,) in block five, (5,) and lot five, (5,) in block nine, (9,) — all in," etc. Lots 8 and 5 are plaintiff's lots. The point made by plaintiff is that the words, "the undivided half," apply to all the lots mentioned. They do apply to the lots mentioned in the same sentence. But they are not carried over into the other sentences of the description so as to apply to the lots mentioned in those sentences. The notice is regular in that respect.

The place of sale is described as "at the front door of the courthouse in the city of Minneapolis, corner 2nd Ave. S. and 3d St., being in said county." The terms "2nd Ave." and "3d St." are figures and abbreviations, the signification of which everybody is supposed to know. They are used to designate the location of the court-house. The facts, as found, are that the old court-house of the county, used as such for many years, had been partly destroyed by fire, so that the court-rooms and the rooms of several of the county officers could not be used, and the county commissioners had rented a building on the corner of Second avenue south and Third street, in Minneapolis, for three months, for temporary use for some of the county officers and for all the court-rooms, while the former court-house was undergoing repairs. The auditor, treasurer, register of deeds, and clerk of the court had removed into this building; the others remaining in the old court-house. The new building was used as a court-house from April 8th till the latter part of July; one term and part of another of the district court having been held in it. The notice of sale was dated May 15th, and the sale was June 27th. This new building was a proper place at which to make the sale, and it was proper to designate it in the notice as the...