Lowry v. Mayo

• Decision Date: 09 August 1889
• Citation: 43 N.W. 78,41 Minn. 388
• Parties: LOWRY v MAYO.
• Court: Minnesota Supreme Court

41 Minn. 388

43 N.W. 78

LOWRYvMAYO.

Supreme Court of Minnesota.

Aug. 9, 1889.

(Syllabus by the Court.)

1. A party who procures an instrument to be executed in the name of another without authority is estopped from disputing the validity thereof as against any one acting upon the faith of its genuineness.

2. To authorize the foreclosure by advertisement of a mortgage by an assignee thereof, the assignment must have been duly acknowledged and recorded; and if the same is not properly acknowledged, so as to entitle it to be recorded, the foreclosure is a nullity.

3. The act of February 27, 1885, validating the record of conveyances previously made, could have no effect upon previous foreclosures, or deprive land-owners of their right to redeem mortgaged premises.

4. Evidence held insufficient to authorize the decision of the trial court holding that the defendant was conclusively estopped from disputing plaintiff's title, and taking the case from the jury.

Appeal from district court, Hennepin county; HICKS, Judge.

Action by Thomas Lowry against Frederick G. Mayo, to recover possession of land. Verdict directed for plaintiff, and defendant appeals.

E. E. Cooley and W. E. Akers, for appellant.

Koon & Semple, for respondent.

VANDERBURGH, J.

This action is brought to recover possession of a quarter section of land occupied by the defendant. Each party claims to have the title in fee. The plaintiff claims to have derived title under a mortgage executed by defendant to one Rollins to secure the sum of $2,000 and interest, payable three years after date. In February, 1879, this mortgage was assigned by Rollins to one Reuben Mayo, the defendant's brother, but retained in the possession of the defendant till March 7, 1879, when, at Osceola, in the county of Polk, in the state of Wisconsin, the defendant executed an assignment of the mortgage to Farnham & Lovejoy of Minneapolis, in the name, but without the authority, of Reuben; and attached to the assignment is a certificate of acknowledgment of the same, purporting to be made by the court commissioner of Polk county, Wis., of the date last mentioned; but such certificate is not authenticated in any manner. Defendant soon after delivered the mortgage with the assignment to Farnham & Lovejoy, who held the rest of his property in trust to pay debts, and the evidence tends to show that they received and held the mortgage in the same way. The next year, in June, 1880, they caused both the assignments above referred to to be recorded in the office of register of deeds of the proper county. Farnham & Lovejoy afterwards proceeded to foreclose the mortgage in question as assignees, by advertisement, and the premises were bid off by them under such proceedings on the 25th day of February, 1882, at the price and sum of $2,780. Defendant was in actual possession and occupation of the premises, and was duly served with notice of the foreclosure, as required by the statute. Farnham & Lovejoy afterwards, in 1885, conveyed the premises by warranty deed to one Winthrop Young, and the latter conveyed the same to the plaintiff in May, 1886, for the consideration recited in the deed of $14,000.

1. The defendant is estopped, by his own acts in procuring and delivering the last assignment of the mortgage, as against any one acting upon the faith of its genuineness, from disputing the validity thereof.

2. The assignment purporting to have been made by Reuben Mayo was not acknowledged before a proper officer, nor was the acknowledgment duly certified and authenticated, as required by the laws of this state, so as to authorize the assignment to be recorded. The record, therefore, is a nullity, and the foreclosure proceedings unauthorized, and void. Ross v. Worthington, 11 Minn. 438, (Gil. 323); ...