Smith v. Green

• Decision Date: 14 November 1889
• Citation: 41 F. 455
• Parties: SMITH v. GREEN et al.
• Court: U.S. District Court — District of Minnesota

41 F. 455

SMITH v. GREEN et al.

United States Circuit Court, D. Minnesota.

November 14, 1889

John B & W. H. Sanborn, for complainant.

W. E Hale, for defendants.

NELSON J.

Suit is brought to set aside a quitclaim deed, executed and delivered by the complainant, J. Allison Smith, to John Green et al June 15, 1886, on the ground of fraudulent representations (which complainant believed were true and relied upon,) made by said Green and the other defendants acting for him and on his behalf. The land conveyed is described as lot No. 4 of the S.W. 1/4 of section 28, township 29, range 24, located and situated in Hennepin county, in the state of Minnesota. Testimony is taken in regard to the alleged fraud, but, in the view taken, the conclusion of law, entitling the defendants to a decree dismissing the bill, upon the stipulation that the following facts are true, renders it unnecessary to consider that question. The determination of the suit rests upon the validity of a foreclosure by advertisement of a mortgage, and the questions presented are: (1) Is an instrument in the form of a mortgage, which describes the land accurately, according to the survey of the government of the United States, and from that description it appears the land is located in Hennepin county, in the territory (now state) of Minnesota, but not so declared in the instrument, such a mortgage as can be foreclosed by advertisement and sold according to the laws of the territory (now state) of Minnesota, and by such sale does a legal title become vested in the purchaser? (2) Has such mortgage been duly and legally foreclosed, so as to bar the equity of redemption, and vest a title before the execution and delivery of the quitclaim deed from Smith to Green?

The following are the facts: On April 22, 1857, John Green, one of the defendants, was the owner in fee of the following land: Lot No. 4 of the S.W. 1/4 of section 28, township 29 range 24, according to the survey of the United States government, and containing 67.25 acres, located in the county of Hennepin and territory (now state) of Minnesota. On that day Green sold and conveyed the land to Snyder, McFarlane, and Cook, taking a mortgage on the land as security for the deferred payment of $2,914.10, part of the purchase money. This mortgage failed to name the county and territory (now state) in which the land is situated, but otherwise accurately describes the land according to the government survey, and recites the facts that the mortgagor and mortgagees are residents of Hennepin county and territory (now state) of Minnesota, and that the acknowledgment was taken before a notary of said territory, (now state,) and the mortgage deed recorded in said county and territory. The mortgage was recorded on May 1, 1857, of the same year. It contained a power of sale authorizing foreclosure and sale at public auction, according to the statute in such case made and provided. The grantor and grantees were all citizens and residents of the state of Minnesota. On April 15, 1858, Cook sold and conveyed his interest in the land to Snyder and McFarlane, and the deed for the same was recorded June 25, 1858. On July 23, 1858, Snyder And McFarlane sold and conveyed, by warranty deed, the said property to J. Allison Smith, of the state of Illinois, 'subject to a mortgage in favor of John Green. ' There was no other mortgage to Green but the one hereinbefore described. The acknowledgments of all the hereinbefore described instruments were taken before a notary public of the state of Minnesota. On January 16, 1861, the purchase money remaining unpaid, which was secured by the mortgage, Green proceeded to foreclose it, and caused to be printed and published a notice of said foreclosure sale, as appears by the affidavit of the printer, and under said foreclosure proceedings the property was sold at public auction to said Green, he being the highest bidder, and a certificate to which was attached a true copy of the notice of foreclosure was given the purchaser by the sheriff of Hennepin county, who made the sale, and said certificate contained a...