Martin v. Baldwin
| Decision Date | 05 July 1883 |
| Citation | 16 N.W. 449,30 Minn. 537 |
| Parties | Francis Martin v. Caroline L. Baldwin, impleaded, etc |
| Court | Minnesota Supreme Court |
Appeal by defendant Caroline L. Baldwin, from a judgment of the district court for Hennepin county, where the action was tried by Shaw, J., without a jury.
Judgment affirmed.
Seagrave Smith, for appellant.
Robinson & Bartleson, for respondent.
The action is under the statute to determine adverse claims to real estate. The only controversy here is between plaintiff and the defendant Caroline L. Baldwin. So far as affects their adverse claims, the facts are: July 10, 1874, one Bell owned the real estate, and on that day conveyed it to Rufus J. Baldwin, husband of Caroline L., for the consideration of $ 4,400. Of this, $ 1,466.67 was paid by a credit of that amount upon the price of real estate about the same time conveyed by said Rufus J. to Bell, and the remainder of said $ 4,400 was secured by a mortgage executed by Rufus J. to Bell, upon the land so conveyed to Rufus J. The land so conveyed by Rufus J. to Bell was bought by the former with money which he held as trustee of said Caroline L., he taking the title to the land in his own name, without her actual knowledge. October 5, 1874, Bell assigned the mortgage to Bovey, and the assignment was duly recorded October 30, 1874. June 20, 1879, Bovey attempted to foreclose the mortgage under the power of sale contained in it, and at the sale became the purchaser. The defects alleged against this attempt to foreclose are in the notice of sale; that it did not state when the mortgage was recorded, but, instead contained this clause: "When and where recorded: In the office of the register of deeds of Hennepin county, in the state of Minnesota, in Book 30 of Mortgages, on page 152;" and that it was not signed by the mortgagee or assignee, but by the attorney for the assignee, as follows "Geo. H. Spry, Attorney for said Assignee." March 22, 1881, Bovey, being advised that his foreclosure was defective, proceeded again to foreclose. The sale was had May 14, 1881, and he became the purchaser. Assuming the former attempt to foreclose to have been ineffectual, the second was in all respects regular. April 22, 1878, one Rafter recovered judgment in the district court against Rufus J. Baldwin for $ 2,254.57, which was on the same day duly docketed in the county of Hennepin, where the real estate is situated. On March 8, 1882, E. C. Whitney, by assignments duly executed and filed in the office of the clerk of the district court became the owner of this judgment. May 13, 1882, he duly filed notice of his intention to redeem from the second foreclosure, and, no redemption having been made by the mortgagor, or any one holding his right, Whitney, in proper time, duly redeemed from the second foreclosure sale, and received and had recorded the proper certificate thereof. Afterwards, and on May 24, 1882, he conveyed to plaintiff. July 30, 1881, Bovey conveyed to Caroline L. Baldwin.
The first point made by defendant against Whitney's redemption is that the first foreclosure exhausted the power of sale, so that the second foreclosure, from which he redeemed, was void. But the first foreclosure was void by reason of the notice of sale not stating the time when the mortgage was recorded. In foreclosing under the power of sale, what the statute requires must be substantially complied with. The statute requires the notice to specify "* * * the date of the mortgage and when recorded." Gen. St. 1878, c. 81, § 6. The purpose of this requirement is manifest. It is that persons interested in the property may have notice whether their interests are...
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