Rogers v. Benton
| Decision Date | 26 June 1888 |
| Citation | 38 N.W. 765,39 Minn. 39 |
| Parties | Belle J. Rogers and others v. Elizabeth Benton and others |
| Court | Minnesota Supreme Court |
Plaintiffs brought this action, on August 31, 1887, in the district court for Chisago county, against the defendant Elizabeth Benton, who is the widow, and the other defendants who are the heirs-at-law, of Edwin K. Benton, deceased, to remove from plaintiffs' title to the lands described in the complaint, the cloud created by defendants' claim of title thereto, and to have it adjudged that the defendants have no title or interest in the land or any right of possession, etc.
The action was tried by Crosby, J., who found the facts stated in the opinion, and ordered judgment for plaintiffs. A new trial was refused, and the defendants appealed.
Order affirmed.
Warren H. Mead, for appellants.
Clark Eller & How, for respondents.
The principal questions in this case are, what constitutes "a mortgagee in possession," and what are his rights? The facts, as found by the court, so far as here material, are that, one Edwin K. Benton being the owner of a tract of land containing 240 acres, he and his wife, defendant Elizabeth Benton, in December, 1857, executed a mortgage upon it to William and James Chaffee, to secure the payment of $ 1,000, in one year. Benton resided on the land until the fall of 1866, when he left the state, and went to the state of Connecticut, where he continued to reside until his death, October 3, 1878; his wife and children continuing, however, to reside on the premises until March, 1876. In July, 1874, W. B. Conant, the assignee of the mortgage, proceeded to foreclose by advertisement under a power of sale; and at the mortgage sale, August 22, 1874, bid in the land, and obtained a sheriff's certificate of sale. No redemption having been made, in February, 1876, Conant demanded possession as owner under the mortgage sale from the defendant Elizabeth Benton, who, in compliance with the demand, removed from and vacated the premises in March, 1876. In February, 1876, Conant and wife had quitclaimed the premises to one Mills, who, on the same day, quitclaimed them to Mrs. Conant. On the 1st day of June, 1876, Mrs. Conant and family entered into possession of the whole of the premises peaceably and in good faith, claiming to be the owner; and she, and those claiming under her, have ever since, without objection from any one, remained in the actual, continuous, and peaceable possession of the premises until in August, 1887; except that, as the court finds, the south 80 acres, which had been conveyed by the Conants to the plaintiff Dodge, has not been actually occupied by any one since March, 1885, -- this part of the land, as the evidence discloses, being unimproved, and the house upon it having been burned. On the 27th of August, 1887, the defendant Elizabeth Benton, having obtained a quitclaim from the heirs of Edwin K. Benton, intruded herself into some rooms in the dwelling-house on the north 80 acres occupied by the tenant of plaintiff Rogers. So far as appears, this was the first time either she or any of the heirs of Benton made any claim to the premises since they vacated them, in March, 1876. It is not claimed that the mortgage from Benton to the Chaffees has ever been paid. The plaintiffs claim through certain mesne conveyances under Mrs. Conant, -- the plaintiff Rogers the north 160 acres, and the plaintiffs Dodge and Hall the south 80. It is conceded that the foreclosure by Conant, in 1874, was abortive; the time for foreclosure under the power of sale having previously expired. Laws 1871, c. 52. Plaintiffs claim, however, that it was in 1876 still a live mortgage, that might have been foreclosed by action; and that they, and those under whom they claim, occupied the position of mortgagees in possession, whose rights had, prior to August, 1887, ripened into title by the expiration of the time within which the mortgagor, or those claiming under him, might have brought an action to redeem.
Defendants' first position is that Conant, having elected to foreclose by advertisement, could not afterwards have foreclosed by action, and therefore that the mortgage was extinguished and dead before the Conants entered into possession, in June, 1876. That the two modes of foreclosure are cumulative, and that a void attempt to foreclose by advertisement does not destroy the lien of the mortgage or cut off the right to resort to foreclosure by action, is too well settled to admit of discussion. Folsom v. Lockwood, 6 Minn. 119, (186;) Lash v. McCormick, 17 Minn. 381, (403.) Neither is there anything in the point that evidence of any such right was inadmissible under the complaint. It is true that it alleges a valid foreclosure, and asserts title under it; but it alleges all the facts necessary to entitle plaintiffs to the rights of mortgagees in possession, if the evidence warrants it.
This brings us to the first important legal question in the case, viz., whether the right to foreclose by action still continued when the Conants went into possession, June 1, 1876. This cause of action accrued against Benton in December, 1858, and, under Laws 1870, c. 60, would have been barred September 8, 1870, unless saved from the operation of the statute by his departure from and residence out of the state. It has been determined that the exception in Gen. St. 1866, c. 66, § 15, from the time limited for commencing actions, of the time during which the defendant resides out of the state, applies to an action to foreclose a mortgage upon real estate. Whalley v. Eldridge, 24 Minn. 358. We need not here discuss the nature of the absence from the state on part of a defendant necessary to prevent the statute from running. The evidence abundantly justified the court in finding that in this case it was permanent in its nature, and that Benton resided in Connecticut from the time of his departure, in 1866, until his death, in 1878. The fact that he never returned during these 11 years, and that in his will, executed shortly before his death, he described himself as of East Windsor, Conn., abundantly justified the conclusion that his absence was a permanent change of residence, and, if so, it was of no legal importance that his family remained behind. The fact that Conant might, notwithstanding the non-residence of the mortgagor, have resorted to substituted service of the summons, would not take the case out of the statutory exception. The right to foreclose by action, therefore, still existed when the Conants entered into possession.
Though the foreclosure was ineffectual as such, yet, under the facts of this case, by the deeds from Conant to Mills, and from Mills to Mrs. Conant, of the interest apparently acquired by Conant as purchaser at the foreclosure sale, Mrs. Conant became the owner of the mortgage. Johnson v. Sandhoff, 30 Minn. 197, (14 N.W. 889;) Holton v. Bowman, 32 Minn. 191, (19 N.W. 734.) The question is, did she acquire possession of the premises under such circumstances as to make her "a mortgagee in possession?"
The law as to what constitutes "a mortgagee in possession" has not been so clearly defined by the decisions as it might be. Sometimes the subject is referred to as if all that is necessary is that the mortgagee should be in possession in fact, regardless of the mode of acquiring it. Sometimes a mortgagee in possession is spoken of as one who has acquired...
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