Menard v. Crowe

• Decision Date: 01 January 1873
• Citation: 20 Minn. 402
• Parties: AURELIA MENARD and others v. ISAAC CROWE and others.
• Court: Minnesota Supreme Court

Page 402

20 Minn. 402

AURELIA MENARD and others

v. ISAAC CROWE and others.

Supreme Court of Minnesota.

Appeal by plaintiffs from a judgment of the district court, Hennepin county.

The action was to determine adverse claims to real estate. The defendant claimed under a mortgage from plaintiffs, and a foreclosure thereof under the power of sale. The objections against the foreclosure appear in the opinion.

Shillock & Grethen, for appellants.

Lochren, McNair & Gilfillan, for respondents.

BERRY, J.

The plaintiffs made several objections to the evidence of foreclosure, upon which defendants rely, to establish their claim to the land in controversy in this action.

1. It is objected that the notice of sale does not name the mortgagee. The notice describes the mortgage as having been "made, executed, and delivered * * * to Isaac Crowe, agent of Abraham Becker." This is a designation of Crowe, as the mortgagee, i. e., the person to whom the mortgage runs. That he is also styled "agent," etc., is not inconsistent with, nor does it take away, his character as mortgagee.

It is further said that the notice is not signed by Isaac Crowe, as the mortgagee, and that it is signed by Abraham Becker, who is no party to the mortgage. The notice is signed, "Isaac Crowe, agent for Abraham Becker. Abraham Becker, mortgagee in fact." The statute being silent upon the subject of signature, and Crowe being designated mortgagee in the body of the notice, the simple signature, "Isaac Crowe," is sufficient. It shows that the notice is given by the proper person, i. e., the mortgagee. The addition, "agent," etc., is of no more importance than before, while the other signature and addition do not at all affect the fact, appearing from the mortgage and the notice, that Crowe is the mortgagee.

Another objection taken is, that the amount claimed in the notice to be due upon the mortgage is $759.90, while in truth the amount due did not exceed $600. The amount claimed being within the literal terms of the note secured by the mortgage, and no injury or fraud appearing, this objection is answered by Butterfield v. Farnham, 19 Minn. 85, (Gil. 58,) and cases cited.

The last objection to the notice of sale is that, although it appoints the seventh day of November, 1859, as the day of sale, it appoints no hour at which the sale is to take place. The statute (Pub. St. c. 75, §§ 5, 6) requires that the notice should specify "the time and place of sale," and that the sale should be at public vendue, between the hours of 9 o'clock in the forenoon and the setting of the sun. Unquestionably, the best practice would require that the hour, as well as the day, of sale should be named in the notice. But the question in this case is not, what is the best practice, but whether this sale is invalid.

In view of the statutory requirement as to the part of the day during...