Taylor v. Burgess

• Court: Minnesota Supreme Court
• Writing for the Court: Cornell, J.
• Citation: Taylor v. Burgess, 26 Minn. 547, 6 N. W. 350 (Minn. 1880)
• Decision Date: 12 July 1880
• Parties: William Taylor v. Ambrose H. Burgess

6 N.W. 350

26 Minn. 547

William Taylor v. Ambrose H. Burgess

Supreme Court of Minnesota

July 12, 1880

Appeal by plaintiff from an order of the district court for Steele county, Lord, J., presiding, overruling a demurrer to the complaint, the substance of which is stated in the opinion.

Order reversed.

Baxter & Quinn, Amos Coggswell and A. C. Hickman, for appellant.

J. M Burlingame, for respondent.

The statutory foreclosure by advertisement is a substitute for a judicial sale under a decree, and is equivalent to a foreclosure and sale under a decree in chancery. Jackson v. Henry, 10 John. 195; Wilson v. Troup, 2 Cow 195, 230; Warner v. Blakeman, 36 Barb. 501; Bidwell v. Whitney, 4 Minn. 45 (76;) Culbertson v Lennon, Id. 26 (51;) Banker v. Brent, Id 408 (521;) Herman Chat. Mtges. § 211.

The defendant did not elect to consider the instalment of interest due a separate mortgage, under Gen. St. c. 81, § 3, and foreclose it as such, but foreclosed it for the entire sum secured by the mortgage, whereby the entire mortgage was foreclosed. It is true that the notice of sale claimed only the unpaid residue of interest due, and it was impossible to claim more. But default in payment of part of the interest due entitled the defendant to foreclose the mortgage, not a part of it. The notice of sale was notice to plaintiff that the mortgage would be foreclosed for the entire amount mentioned in the note; for if the $ 50.84 mentioned in the notice was due at all, it was because the entire amount mentioned in the note was the basis of the foreclosure; and the premises being but a single tract, the statute (Gen. St. c. 81, § 4,) provides that all shall be sold; and the default, being for interest on the entire amount mentioned in the note, related to the entire mortgage, and not to a separate and independent mortgage; and "the notice given by advertisement is intended for the party as well as the world." Jackson v. Henry, 10 John. 195, per Kent, C. J.

The act decisive in Watkins v. Hackett, 20 Minn. 106, was not done in this case. There the mortgagee availed himself of the privilege given by statute for his, and not for the mortgagor's benefit, and foreclosed for his two instalments only, selling the premises in separate parcels, for an amount sufficient to satisfy those instalments, and no more; while in this case the premises were one tract, which had to be, and which was, sold together, and the entire mortgage satisfied.

The plaintiff had contracted to pay all that the mortgagee bid on the land. True, he had a right of defence to this contract as to the excessive interest. But a party may waive the defence of usury, and allow the claim to go into judgment, or pay it; and when paid our statute gave no right to recover back. In this case the plaintiff, standing by, with full knowledge, and allowing the mortgage -- not an instalment thereof -- to be foreclosed, waived his right as clearly, in this case of foreclosure by advertisement, as he would have done by like inaction had the sale been under a decree. And such waiver, under the notice of foreclosure in this case, is a concession that the amount secured by the mortgage is the entire sum mentioned in the note. Bidwell v. Whitney, 4 Minn. 45 (76;) Culbertson v. Lennon, Id. 26 (51;) Banker v. Brent, Id. 408 521. Had he desired not to make such waiver, he had a full and complete remedy by using ordinary diligence, and enjoining the foreclosure. Jackson v. Henry, 10 John. 196.

OPINION

Cornell, J.

Upon the allegations of the complaint, which stand admitted by the demurrer, the mortgage in question was given to secure a note made by plaintiff and delivered to defendant, dated October 21, 1874, whereby, according to its terms, the former promised to pay to the latter the sum of $ 1,632, in three years from its date, with interest thereon, payable annually, at the rate of 12 per cent. per annum. The sole consideration of the note was a loan of money amounting to $ 1,200; and the excess of principal over this sum which was named in the note was for illegal interest upon the loan, which plaintiff agreed to pay. The mortgage embraced but a single tract of land, and it contained a power of sale authorizing a sale of the premises, pursuant to the statute, upon a default in the payment of the sum mentioned in the note, or the interest, or any part thereof, whenever the same should become due. The first installment of interest falling due upon the note according to its terms was paid at due date, and all of the second installment was also paid, except the sum of $ 50.84.

For default in the payment of this unpaid residue of interest the mortgage was foreclosed by advertisement, and the premises were sold, January 29, 1877, for the sum of $ 1,828.40, the whole amount of which was received and retained by the defendant mortgagee. In the foreclosure notice of sale, the amount claimed to be due upon the mortgage was this "sum of $ 50.84, being the residue of interest remaining unpaid for said second year, according to the terms of said note;" and it was therein stated that the mortgaged premises would be sold to satisfy that amount, together with costs of foreclosure, including $ 75 solicitor's fees, stipulated in said mortgage to be paid in case of foreclosure. The purpose...