Pratt v. Tinkcom

• Decision Date: 17 November 1874
• Citation: 21 Minn. 142
• Parties: WILLIAM M. PRATT & wife <I>vs.</I> JAMES R. TINKCOM.
• Court: Minnesota Supreme Court

21 Minn. 142

WILLIAM M. PRATT & wife vs. JAMES R. TINKCOM.

Supreme Court of Minnesota.

November 17, 1874.

This action was brought, in the district court for Blue Earth county, to restrain the defendant from foreclosing by advertisement a mortgage made by the plaintiffs. Pending the suit, the foreclosure sale took place, the defendant becoming the purchaser, and receiving the usual certificate. Thereupon the plaintiffs served a supplemental complaint, praying that all the foreclosure proceedings be declared void, that the certificate of sale and the record thereof be cancelled, and that the mortgage be adjudged to have been paid, and the mortgaged premises discharged of the lien thereof.

At the trial, before Waite, J., the judge found the following facts: Plaintiffs made to the defendant a mortgage to secure their note to him, which fell due January 24, 1873, which was the third day of grace. On January 23, 1873, notice of foreclosure, dated the 25th, advertising the land for sale on March 10, was drafted and deposited with the Mankato Record newspaper, to be published on the next publication day, which, according to the stated day of the newspaper, would be Saturday, the 25th. The notice was published in the following issue of the paper, all the copies of which were printed on Friday the 24th. On that day, about 60 to 75 copies were taken to subscribers by the carrier, and about 75 copies were put into the post-office at Mankato for subscribers who received their copies there. These copies were distributed for delivery as soon as received, and a part delivered to subscribers on that day. All the copies mailed to subscribers, being about 500 copies, were put into the post-office in Mankato on the 24th, between 5 and 6 P. M.; but none left the post-office until the next day at 7 A. M. On Saturday the 25th, the carrier delivered about 130 copies to subscribers in Mankato. This was the ordinary mode of distributing this newspaper to subscribers, though it was not known to the defendant until after the commencement of this action.

On January 25 or 27, the plaintiffs offered to pay defendant's attorney the principal and interest of the note, which he refused to receive, unless they would also pay the accrued printer's fee, and half the attorney's fees on foreclosure. On February 3, the plaintiffs made a tender of $675, being the principal and interest, which was refused. The tender was kept good, and the money paid into court.

On March 7, notice was published of a postponement of the sale to March 17, on which day the mortgaged premises were sold at auction by the sheriff to the defendants for $65.70. The defendant did not pay this amount to the sheriff, but assumed and attempted thereby to reimburse himself certain expenses incurred in making the sale. Thereafter and on the same day, the defendant demanded and received from the clerk of the court the $675 which plaintiffs had paid into court for his use.

As matters of law, the judge found that the first publication of the notice was made on Saturday, January 25; that although most of the copies of the newspaper were distributed on Friday, the 24th, in advance of the regular publication day, still, the distribution of the 130 copies on Saturday, the 25th, completed the publication of that number of the paper; and that defendant was entitled to the amount of the tender. Judgment of dismissal was accordingly ordered and entered, from which the plaintiffs appeal.

Severance & Dickinson, for appellants.

Wilkinson & Pitcher, for respondent.

YOUNG, J.

The 60 to 75 copies of the newspaper delivered in Mankato by carrier, on Friday, January 24, were undoubtedly published on that day. The same is true of the 575 copies deposited in the post-office on...