Larocque v. Chapel

• Decision Date: 24 January 1896
• Citation: 65 N.W. 941,63 Minn. 517
• Parties: LAROCQUE v. CHAPEL, SHERIFF.
• Court: Minnesota Supreme Court

63 Minn. 517

65 N.W. 941

LAROCQUE

v.CHAPEL, SHERIFF.

Supreme Court of Minnesota.

Jan. 24, 1896.

(Syllabus by the Court.)

1. Gen. St. 1894, § 6051, provides that the party foreclosing a mortgage shall make and file an affidavit of costs and disbursements “within 10 days after foreclosure.” Held, that the 10 days begin to run, not from the day the property is offered for sale and struck off to the purchaser, but from the time the foreclosure sale is completed by the execution and recording of the certificate of sale.

2. But held, also, that although the provision of Gen. St. 1894, § 6038, that the certificate of sale shall be executed and filed within 20 days after sale may be merely directory as to time, yet as the provision as to filing the affidavit of costs and disbursements is mandatory, a party cannot extend the time for filing such affidavit by failing to procure and file his certificate within 20 days after sale.

Appeal from district court, Ramsey county; Kerr, Judge.

Action by Elemenia Larocque against Charles E. Chapel, sheriff. There was a judgment for defendant, and from an order denying a new trial plaintiff appeals. Affirmed.

Nelson & McDermott, for appellant.

Eller & How, for respondent.

MITCHELL, J.

This action was brought to recover from the sheriff an alleged surplus upon a foreclosure under a power of sale, to the extent of the expenses of foreclosure, including the stipulated attorney's fees. It is based upon an alleged failure to comply with the requirements of Gen. St. 1894, § 6051, that an affidavit of the costs and disbursements embraced in the foreclosure sale shall be made and filed “within 10 days after foreclosure.” The auction sale took place on September 18th. The certificate of sale was executed by the sheriff on September 27th, and recorded on September 29th. The affidavit of costs and disbursements required by the statute was also filed on September 29th. The whole case turns upon the meaning of the phrase “within 10 days after foreclosure,” as used in the statute. Plaintiff contends that it means within 10 days after the auction at which the property was struck off to the purchaser. If this is so, then the affidavit was filed one day too late. On the other hand, the contention of the defendant is that the “foreclosure” is not completed until the certificate of sale is executed and recorded, which is directed to be done within 20 days after the sale, and hence that the 10 days within which the affidavit of costs and disbursements is to be filed commence to run, not from the auction of the property, but from the completion of the foreclosure by the execution and recording of the certificate of sale. Although we have several times had occasion to construe this section of the statute, and have held that it was mandatory, the question here presented has never before been raised. Johnson v. Association (Minn.) 62 N. W. 381;Brown v. Association (Minn.) 63 N. W. 1040. It may be that, not having the present question in mind, we may have sometimes used language that might seem to favor plaintiff's construction; and it may possibly be true that there are other provisions of statute where the phrase, “time of foreclosure,” appears, from the context, to refer to the time when the property was offered for sale and struck off to a bidder. But our conclusion is that, in...