Smith v. Buse

• Citation: 28 N.W. 220,35 Minn. 234
• Parties: SMITH v BUSE AND OTHERS.
• Decision Date: 26 May 1886
• Court: Supreme Court of Minnesota (US)

35 Minn. 234

28 N.W. 220

SMITHvBUSE AND OTHERS.

Supreme Court of Minnesota.

May 26, 1886.

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

S. L. Pierce, for respondent, Charles C. H. Smith.

Thos. Canty, for appellants, Eliza Buse and others.

GILFILLAN, C. J.

The plaintiff brings this action under the statute to determine adverse claims to lots 10 and 11, section 15, township 151, range 44, alleging that he is the owner, and that the same are vacant and unoccupied. The defendants deny plaintiff's title, and allege title in the defendants, Mary R. Bottineau, Eliza Buse, and Edward Grussendorf. For reply the plaintiff alleges the execution, January 6, 1876, by Mary Bottineau and her husband, prior to her conveyances to the other two defendants, to the Ætna Life Insurance Company, of a mortgage upon said lots and other real estate, with the usual power of sale; the due recording of the mortgage, and various assignments by which the title to it came to one F. T. Day; the foreclosure by him under the power of the mortgagee, March 2, 1882; the sale of said lots, with the N. W. 1/4 section 22, same township and range, as one parcel, at such sale, to Alcey J. Day; the making by the sheriff of the affidavit and certificate of sale, copies of which are attached to the reply, and the subsequent redemption of the premises by plaintiff as a judgment lien creditor. It further alleges that after the foreclosure these defendants commenced an action against said Alcey J. Day and others, to have the foreclosure declared void and for leave to redeem from the mortgage, and that in that action judgment was entered to the effect that the plaintiffs in that action were not entitled to any relief. The affidavit and certificate do not describe any property sold as lots 10 and 11, section 15, township 151, range 44, but it is stated therein that “the north-west quarter, and lots 10 and 11, in section 22, in township 151, range 44,” were sold to Alcey J. Day for $3,200. As to this the reply alleges that the words “section twenty-two,” applied to the description of said lots 10 and 11, are false and impossible, and no part of the description of said lots, and that there are no lots in section 22, of said township and range. The court finds as a fact that at the foreclosure sale the lots in controversy were actually struck off to Alcey J. Day.

The sole question in this action is, did the plaintiff get title to the lots described in the complaint, through the mortgage and foreclosure proceedings set up in the reply? The...