Klotz v. Jeddeloh

• Decision Date: 03 December 1937
• Docket Number: No. 31553.,No. 31554.,No. 31552.,31552.,31553.,31554.
• Parties: KLOTZ v. JEDDELOH et al. BROWN v. AMBERG et al. VOGELSANG v. FEDERAL LAND BANK OF ST. PAUL et al.
• Court: Minnesota Supreme Court

276 N.W. 244

201 Minn. 355

KLOTZ v. JEDDELOH et al.

BROWN v. AMBERG et al.

VOGELSANG v. FEDERAL LAND BANK OF ST. PAUL et al.

No. 31552.

No. 31553.

No. 31554.

Supreme Court of Minnesota.

December 3, 1937.

Appeal from District Court, Waseca County; Fred W. Senn, Judge.

Actions by Joseph Klotz against Otto Jeddeloh and others and the Union Central Life Insurance Company, by Daniel Brown against Anthony Amberg and others, and the Union Central Life Insurance Company, and by William H. Vogelsang against the Federal Lank Bank of St. Paul and others. From adverse judgments, the plaintiffs appeal.

Affirmed.

Moonan & Moonan and H. H. Sturner, all of Waseca, for appellants.

Freeman & King, of Minneapolis, for respondent Union Central Life Ins. Co.

John Thorpe, Michael A. Schmitt, and Robert J. Barry, all of St. Paul, and Charles E. Houston, of Wheaton, for respondents Federal Land Bank of St. Paul.

STONE, Justice.

Three actions to determine adverse claims to real estate resulted in judgments for the defendants. In each case the plaintiff has appealed from the judgment, and the appeals have been consolidated here.

In each case the defendant's title came through the foreclosure by advertisement of a mortgage wherein it was the mortgagee. Each mortgagee was the purchaser at the sale and got the usual statutory sheriff's certificate. Mason's Minn.St.1927, § 9613. The sales were all valid unless invalidated upon the ground now assigned by plaintiffs. Their one point is that because the mortgagee's attorney, conducting the foreclosure, was not himself present at the sale and did not himself submit the bid for the mortgagee, but instead had it made, for the mortgagee, by one of the printers who had published the notice, the sale is void. That presents all the facts needed, both to explain and justify our decision, which is that the sales were all valid. The argument for plaintiffs is a synthesis of three propositions which we consider and negative in their order.

1. The claim that each sale was void because the mortgagee was not present at and during the same, in person or by its attorney

appointed to conduct the foreclosure by the power required by statute (section 9606), is unsound. Each of the involved mortgages had the conventional power of sale. Foreclosure by advertisement is a statutory proceeding. Mason's Minn.St.1927, §§ 9602-9633. Of course, all through there must be compliance with the statute. But the law not only authorizes selection of an attorney at law to conduct the proceeding for the mortgagee (section 9606), but also empowers the mortgagee to purchase at the sale (section 9612). Moreover, the sale must be made by the sheriff (section 9607) who, in his capacity as auctioneer, "is not the agent of either of the parties in making the sale, but the agent of the law to secure a fair sale." Simonton v. Conn. Mutual Life Ins. Co., 90 Minn. 24, 30, 95 N.W. 451, 452.

Formerly there was much adherence to the concept of the mortgagee as trustee of the mortgagor in respect of the conduct of the sale. Wilson v. Bell, 17 Minn. 61 (Gil. 40); Webb v. Lewis, 45 Minn. 285, 47 N.W. 803. Now, however, by reason of statute, the conduct of the sale, as distinguished from that of the whole foreclosure proceeding, having been taken out of the hands of the mortgagee and imposed upon the sheriff in his official capacity, there is no reason (see Bailey v. Hendrickson, 25 N.D. 500, 143 N.W. 134, Ann.Cas. 1915C, 739; Greene v. Newberry, 55 N.D. 783, 215 N.W. 273) for requiring the presence at the sale of the mortgagee. It is his power, and his alone, to direct that the sale be made pursuant to his notice and the statute. He has, however, ceased to be the auctioneer, and there is no other purpose for which his presence at all sales should be required mandatorily. There is no suggestion here that any mortgagee as against some sin of either omission, or commission, is attempting merely to "shelter himself behind a mere literal compliance with" his power of sale or the statute, within the rule of Cambridge Savings Bank v. Cronin, 289 Mass. 379, 382, 194 N.E. 289, 290. Nor is it a case where a mortgagor has been prejudiced by the failure of the mortgagee or sheriff to "exercise reasonable diligence to protect the interests" of the mortgagor. Chartrand v. Newton Trust Co. (Mass.) 5 N.E.(2d) 421, 423.

2. The next claim for plaintiffs is that the delegation to another by the attorney having the power to foreclose, of the bidmaking

function, was an unlawful, and therefore ineffectual, delegation of his agency. The rule against redelegation by an agent of the power delegated to him by his principal applies only in "cases of delegated authority where personal trust or confidence is reposed in the agent and especially where the exercise and application of the power is made subject to his judgment or discretion." 2 Am.Jur., Agency, § 196; Restatement, Agency, § 78; 2 C.J.S. Agency, § 136. Ordinarily where, as here, the mortgagee bids at a foreclosure sale, he authorizes but one bid and fixes the amount, which is usually, but not always, the sum of...