Pinney v. Fridley

• Decision Date: 01 January 1864
• Citation: 9 Minn. 23
• Parties: OVID PINNEY vs. ABRAHAM M. FRIDLEY.
• Court: Minnesota Supreme Court

9 Minn. 23

OVID PINNEYvs.

ABRAHAM M. FRIDLEY.

Supreme Court of Minnesota.

Appeal from order of district court, Hennepin County.

Points and authorities for appellant: —

1. The complaint does not state facts sufficient to constitute a cause of action. It shows no title in respondent. First, the complaint discloses no authority nor facts entitling the mortgagee to give notice of foreclosure. The existence of neither of the following requisite facts appears That the said mortgage contained any power of sale; that the same, or any power of sale was ever recorded; that any default had occurred in any condition of said mortgage, whereby the power of sale, if any, became operative; or that no suit or proceeding had been had or instituted at law to recover the debt secured by said mortgage. Second, it does not appear that any notice that the said mortgage would be foreclosed by a sale of the mortgaged premises was ever given, nor whether said pretended notice specified any of the facts required by statute. Third, it does not appear that the person who made the sale was the sheriff of Manomin County, but only an acting sheriff; nor that any deed has been made. Comp. Stat. ch. 75, §§ 1 to 6 inclusive, and § 17; 6 Minn. [168]; 7 Minn. [167].

2. Every issuable fact must be plead, that is, every fact which plaintiff must prove, and which defendant has a right to controvert, in his answer. 7 N. Y. 478; Lawrence v. Wright, 2 Duer, 673.

Points and authorities for respondent: —

1. The allegations of the complaint constitute a good cause of action. 6 Minn. [567]; 5 Minn. [178]; 14 How. 439; 16 How. 308; 23 Barb. 234; 10 Wend. 414.

2. The allegation in the complaint, that the mortgage was duly foreclosed by advertisement, implies that the mortgage contained a power of sale, was duly recorded, and all other things necessary to constitute a legal foreclosure of the mortgage in that manner. 28 Barb. 240; 8 Abb. Pr. R. 7; 15 How. Pr. R. 305; 4 Abb. Dig. 504, §§ 463-4; 23 Barb. 304; 2 Abb. Pr. R. 421; 12 N. Y. 436; 9 Barb. 459; 16 Barb. 325; 19 N. Y. 207; 2 Abb. 402; 9 N. Y. 1; 12 N. Y. 554; 22 Barb. 388; 1 N. Y. 190; id. 419; 15 Barb. 371.

3. In a foreclosure of a mortgage by advertisement, the printer's and sheriff's affidavits, when recorded, are a substitute for a deed. And when the premises are bid off by the mortgagee a deed is not necessary, and is irregular. 6 Minn. [175]; 4 Denio, 41; 1 Paige, 48; 10 Paige, 562; 20 Barb. 559; 13 Barb. 138; Crary's N. Y. Pr. 75.

F. R. E. & W. B. Cornell, for appellant.

L. M. Stewart, for respondent.

FLANDRAU, J.

Demurrer to complaint. The action is for the recovery of the possession of real estate. The complaint is framed under the forcible entry and detainer act (Comp. Stat. ch. 77), for holding over after sale under a mortgage foreclosure by advertisement. The pleader has undertaken to set out all the chain of facts by which the title was transferred from the defendant to the plaintiff, and through which the plaintiff has become entitled to the possession which he claims in this action. The principal difficulty we encounter in determining upon the sufficiency of this complaint is, whether it contains too much or too little. Had the pleader simply alleged title and right of possession in himself, and a wrongful withholding of the possession from him by the defendant, his cause of action would have been well stated in ejectment, as we have frequently held, and would have entitled him to a judgment for the recovery of the possession. But he has done more than this. He has alleged title in the defendant on a certain day; then a mortgage to the plaintiff, which is described with considerable particularity as to covenants, etc.; then the happening of a default in the condition of the mortgage, and a foreclosure of the same by advertisement under the statute, each step of which foreclosure is particularly set out up to the day of sale, when it is alleged, "That on the said 23d day of September, 1861, the said mortgage was duly foreclosed by a sale at public auction," etc.; also, purchase at such sale by the plaintiff, and a full history of the perfection of his title under the purchase by the execution and recording of the proper papers. Also, an allegation that the time for redemption has expired. Then follows this allegation: "That under and by virtue of said mortgage and foreclosure thereof, as aforesaid, this plaintiff is seized in fee-simple of the said premises, mortgaged as aforesaid, and every part and parcel thereof, and his lawful title thereto, and is entitled to the immediate possession thereof." This is followed by sufficient allegations of wrongful detention by the defendant, demand, refusal, etc.

It will be seen that the pleader, in the first place, shows the defendant to be the owner in fee of the lands. There was no necessity for this, as he might have at once alleged that the plaintiff was the owner in fee, but having done it, he imposes upon himself the task of showing the title out of the defendant and into himself. He alleges a mortgage which, he says, "contained full covenants and warranty," and describes the nature of the condition, etc. On the principle that a pleading must be taken most strongly against the pleader, are we not bound to presume that if this mortgage contained a power of sale the pleader would have stated it. The whole of his subsequent allegations of foreclosure by advertisement depended entirely upon the existence of such a power. He has omitted to allege any power of sale, which being the only foundation upon which he could foreclose by advertisement, all the subsequent allegations of such foreclosure fall to the ground, unless they are saved by some other part of the pleading. In...