Russell v. H. C. Akeley Lumber Co.

• Citation: 45 Minn. 376,48 N.W. 3
• Parties: RUSSELL v H. C. AKELEY LUMBER CO.
• Decision Date: 13 February 1891
• Court: Supreme Court of Minnesota (US)

45 Minn. 376

48 N.W. 3

RUSSELLvH. C. AKELEY LUMBER CO.

Supreme Court of Minnesota.

Feb. 13, 1891.

(Syllabus by the Court.)

1. If a purchaser at a defective foreclosure sale, or his assigns, goes into possession of the mortgaged premises, with assent of the mortgagor or his successors in interest, under the right supposed to have been acquired under the foreclosure sale, he will be deemed a mortgagee in possession; and, if he remain in possession until the right of redemption by the mortgagor is barred, he becomes vested with the title to the premises. Following Rogers v. Benton, 39 Minn. 39,38 N. W. Rep. 765.

2. A foreclosure by advertisement in 1858 was defective and invalid, by reason of an insufficient publication of the notice of sale. The purchaser at the sale, or his assign, went into possession of the mortgaged premises in 1883, and has ever since continued in possession. Held that, in an action of ejectment by one claiming under the mortgagor by conveyance subsequent to the mortgage, the right to recover because of the defective publication of the notice of sale is barred by Gen. Laws 1883, c. 112.

3. This act is valid, at least as applied to cases where the purchaser at the mortgage sale has gone into possession under the sale.

Appeal from district court, Hennepin county; LOCHREN, Judge.

Gilger & Harrison, for appellant.

Ripley, Brennan & Booth, for respondent.

MITCHELL, J.

This was an action of ejectment commenced in September, 1889. Both parties claim title from the same source, viz., D. B. Sutton and Rush Pratt, former owners. The defendant derives its title through the foreclosure by advertisement of a mortgage executed by Sutton & Pratt to Jered S. and Daniel M. Demmon, February 9, 1857, to secure three notes payable in 1 year, 18 months, and 2 years, respectively, from the date of the mortgage. It is conceded that the plaintiff has acquired, by various mesne conveyances, all the interest which Sutton & Pratt had in the land after the execution of the mortgage to the Demmons. It is also conceded that defendant has acquired by divers conveyances all the interest of the purchasers at the foreclosure sale under that mortgage. The defendant sets up title under this foreclosure; also by 20 years' adverse possession; also as mortgagee in possession. The real ground of plaintiff's claim is the alleged invalidity of the foreclosure sale. To this defendant interposes the limitation prescribed by Gen. Laws 1883, c. 112, to-wit, that the action was not brought within five years from the date of the sale. The history of the Demmon mortgage and of its foreclosure is as follows: In December, 1857, the Demmons assigned to R. P. Upton and James Pratt by an instrument which fully described the mortgage, giving its date, the date and place of record, and the names of the mortgagors and mortgagees; and in January, 1858, Upton assigned his interest in it to William Townsend, by an instrument apparently annexed to or indorsed upon the previous assignment, and the two assignments were recorded together in the same book and page, and under one entry, of the date of filing, by the register of deeds. This assignment from Upton to Townsend did not describe the mortgage or the previous assignment, its language being that he (Upton) assigned “all his right, title, and interest in and to the within instrument of assignment, and the contract therein set forth, and in and to the mortgaged premises, debts, and notes therein mentioned.” It is objected that the record of this assignment was not sufficient to authorize the assignee to foreclose by advertisement; but this point is more than covered by the case of Carli v. Taylor, 15 Minn. 171, (Gil. 131.) Pratt and Townsend, as assignees, then proceeded to foreclose by advertisement, and sold the premises March 25, 1858, they themselves being the purchasers, and obtaining from the sheriff who made the sale a certificate in due form according to the statute then in force, (Rev. St. 1851, c. 85, § 10;) and in May, 1859, after the expiration of the time of redemption, they obtained a sheriff's deed, which was recorded in August, 1859. In the notice of sale there was an inaccuracy as to the date when the mortgage was recorded, but the most serious objection to this foreclosure sale is that the notice, although published six times, was not published for six weeks before the date of sale, the first publication being made February 20th, and the sale being March 25th. This defect, if seasonably urged, would doubtless have been fatal to the sale. But the court finds true the allegations of the answer that, after the expiration of the time for redemption, the...