Johnson v. Day

• Decision Date: 08 December 1891
• Citation: 50 N.W. 701,2 N.D. 295
• Parties: Johnson v. Day et al.
• Court: North Dakota Supreme Court

2 N.D. 295

50 N.W. 701

Johnson

v.Day et al.

Supreme Court of North Dakota.

Dec. 8, 1891.

Syllabus by the Court.

1. In foreclosure proceedings by advertisement, where the mortgage provided for an attorney's fee, and the mortgagee was represented by an attorney, the failure of such attorney to file the affidavit required by section 5429, Comp. Laws, does not invalidate the sale. But such failure would prevent the mortgagee from recovering such attorney's fee; and if, in such case, the officer making the sale sold the mortgaged property for an amount sufficient to pay the debt, with costs and disbursements, including such attorney's fee, he would be liable, on demand, to the mortgagor for the amount of such attorney's fee.

2. The failure of the officer making such sale to file a duplicate certificate of sale in the office of the register of deeds where the mortgage is recorded, within 10 days after such sale, as required by section 5420, Comp. Laws, does not invalidate the sale. This section is directory, and not mandatory.

3. In such foreclosure proceedings a mistake in the middle initial of the mortgagor's name is immaterial. The law recognizes but one Christian name.

Appeal from district court, Sargent county; W. S. Lauder, Judge.

Action by John L. Johnson against F. T. Day, Jonathan T. Backus, trustee, and F. G. Bartlett, as sheriff of Sargent county, to set aside certain mortgage foreclosure proceedings. Judgment for plaintiff. Defendants appeal. Reversed.W. A. Gates and J. E. Bishop, for appellants.

Bartholomew, J.

This was an action in equity to set aside and cancel certain foreclosure proceedings by advertisement. There was a decree for plaintiff, and defendants appeal. This action was evidently brought on the theory that the sale was absolutely void. Plaintiff does not ask an extension of the time for redemption, and does not tender the amount he admits to be due. He claims that the sale, and the proceedings thereunder, constituted a cloud upon his title, which he asks a court of equity to remove without conditions. There is nowhere in the record a suggestion of any damage resulting to him by reason of the alleged irregularities and omissions in the proceedings prior and subsequent to the sale. There are three findings of fact upon which the lower court rested the decree. They are in substance- First, that the mortgagee (defendant herein) appeared in said foreclosure proceedings by attorney, and that said attorney entirely failed to file the affidavit required by section 5429, Comp. Laws; second, “that the certificates of sale in said proceedings prescribed by section 5420 were not filed in the office of the register of deeds where said mortgage was recorded within 10 days after the date of said sale,” and not until 18 days had elapsed; and, third, that in the foreclosure proceedings the mortgagor (plaintiff herein) was designated as John S. Johnson, while his true name is John L. Johnson.

If either of these grounds is sufficient to support the decree, it must stand. The correctness of these findings is questioned, but we need not enter upon that branch of the case, as we think the findings insufficient to sustain the conclusions. Section 5429, Comp. Laws, reads. “The party foreclosing a mortgage by advertisement shall be entitled to his costs and disbursements out of the proceeds of the sale, and shall also be entitled, in addition, to any attorney's fee agreed upon in the mortgage, upon the making by the attorney, or, if more than one, by one of the attorneys, employed to foreclose, and filing with the register of deeds, at or prior to the time of sale, of an affidavit to the effect,” etc. It seems clear that this affidavit is required to enable the mortgagee to recover the attorney's fee agreed upon in the mortgage, and for no other purpose; hence a failure to file it can only result in the failure to recover such attorney's fee. There is nothing in the case to show us that any such attorney's fee was ever recovered in these proceedings. Even if such fee was included in the amount for which the land was sold, we cannot assume that such fee has been paid to the mortgagee, and the mortgagor is entitled, on demand, to any amount recovered on the sale, in excess of what was in fact due on the mortgage. Comp. Laws, § 5424. The fact that the officer making the sale realized more than was in fact due, certainly is not to the disadvantage of the mortgagor. Nor would a mistake of the officer in ascertaining such amount in any manner bind the mortgagor or relieve the officer from liability to him for any surplus beyond the actual amount going to the mortgagee, and, if such excess had been paid to the mortgagee, then both the officer making the sale and the mortgagee recovering the money would be liable to the mortgagor for the amount of such excess upon demand made. Millard v. Truax, 47 Mich. 251, 10 N. W. Rep. 358;Kennedy v. Brown, 50 Mich. 336, 15 N. W. Rep. 498. Section 5420, Comp. Laws, is as follows: “Whenever any real property shall be sold by virtue of a power of sale contained in any mortgage, the officer or person making the sale shall immediately give to the purchaser a certificate of sale...