Temple v. Norris
| Decision Date | 19 May 1893 |
| Citation | 55 N.W. 133,53 Minn. 286 |
| Parties | Ruby D. Temple v. Mary L. Norris |
| Court | Minnesota Supreme Court |
Argued May 8, 1893.
Appeal by plaintiff, Ruby D. Temple, from an order of the District Court of Hennepin County, Thomas Canty, J., made September 17, 1892, sustaining a demurrer to her complaint.
Plaintiff owned lot six (6) in block two (2) in Dunsmoor's Rearrangement of the Second Nicollet Avenue Addition in Minneapolis. She mortgaged it November 8, 1890, to John P Pineo, to secure the payment of $ 1,300 three years thereafter, with interest payable semiannually. The mortgage provided that, if any installment of interest remained past due and unpaid for sixty days, the principal also should be due and payable. The mortgage also contained a power of sale on default in payment. Pineo assigned the mortgage February 14, 1891, to the defendant, Mary L. Norris. The first installment of interest was not paid, and on September 1 1891, the mortgage was foreclosed, and the lot sold by the sheriff under the power, to the defendant for the whole amount secured, with interest and costs.
This action was brought September 3, 1892, to set aside this foreclosure. The plaintiff in her complaint stated that the notice of sale was not served on the person in possession of the mortgaged premises. That the house thereon was occupied by her tenant, A. P. Lyon, and his family. That one Theodore Dahl, a deputy sheriff, on July 30, 1891, at the house handed a copy of the notice to Fannie Lyon, the tenant's daughter, fourteen years of age, then resident therein. That she was wholly unaccustomed to, and unfamiliar with, business transactions and all legal proceedings. That she was not of suitable age or discretion. That she was then wholly incapable of understanding and comprehending the nature and gravity of the transaction, and did not understand or comprehend the nature or gravity thereof, and that in fact she did not give the notice to said A. P. Lyon, or call his attention thereto.
The defendant demurred to the complaint. The demurrer was sustained, and plaintiff appeals.
Order affirmed.
J. F Kenne, for appellant.
The facts in regard to the manner of service of the notice of foreclosure sale on the occupant of the mortgaged premises, as stated in the complaint and admitted by the demurrer, are sufficient to show that the service contemplated by the statute was not made.
It was not necessary for plaintiff to offer to pay the debt secured, to obtain relief from an invalid foreclosure of the mortgage.
Stocker & Matchan, for respondent.
1878 G. S. ch. 81, § 5, provides that this notice shall be served in like manner as a summons in civil actions in the District Court. A summons may be served upon the defendant by leaving a copy at the house of his usual abode with some person of suitable age and discretion then resident therein. 1878 G. S. ch. 66, § 59. This notice was served by leaving a copy at the house upon the premises, with Fannie Lyon, of the age of fourteen years, and a resident therein. A person of suitable age and discretion, upon whom a summons or notice can be served, need not be accustomed to business or acquainted with legal proceedings.
In her application for relief, the plaintiff must tender payment of the interest due, or show her readiness to pay it. Abbott v. Peck, 35 Minn. 499; Scott v. Austin, 36 Minn. 460; Hatch v. De La Garza, 7 Tex. 60.
But one feature of the complaint in this action need be considered. It was therein alleged that the only person upon whom a copy of the foreclosure notice was served was but "fourteen years old, and no more, and was wholly unaccustomed to, and unfamiliar with, business transactions and all legal proceedings, and that she was not of suitable age or discretion; that she was then wholly incapable of understanding and comprehending the nature and gravity of the transaction, and did not understand the nature or gravity thereof."
The statute...
To continue reading
Request your trial