Van Meter v. Knight
| Decision Date | 12 June 1884 |
| Parties | Laura P. Van Meter v. A. M. Knight |
| Court | Minnesota Supreme Court |
Action to determine adverse claims to real estate situated in Renville county, brought in the district court for that county. Defendant pleaded title under a foreclosure by advertisement of a mortgage upon lands in both Renville and McLeod counties, the sale having been made in the latter county. The mortgage was properly recorded in Renville county, but the record of it in McLeod county failed to include the land in Renville county. Plaintiff's title rests upon a deed from the mortgagor given subsequent to the mortgage.
Upon the trial of the action, before Webber, J., without a jury when the defendant had rested his case, the plaintiff tendered to the defendant the amount for which the land in controversy was sold upon the foreclosure sale, and, upon defendant's refusal to receive it, paid it into court. The court found that plaintiff was the owner in fee simple of the premises, and that defendant was entitled to the fund deposited in court. Defendant appealed to the court from the clerk's taxation of plaintiff's disbursements; the taxation was affirmed, judgment was entered in accordance with the findings of the court, and the defendant appealed.
Judgment affirmed.
Peck & Little, for appellant.
Cross Hicks & Carleton, for respondent.
One Edwards executed to one Austin a mortgage upon lands situated partly in McLeod county and partly in Renville county. The mortgage was duly recorded in the latter county, and was also recorded in McLeod county, except that the description of the land situated in Renville county was wholly omitted from the record. Default having been made in the conditions of the mortgage, Austin foreclosed by advertisement under a power of sale, the notice of sale being published, and the sale being made, in McLeod county. At this sale the lands in both counties were sold, in separate parcels, to the defendant. The time of redemption having expired, and the land in Renville (which is the land in controversy) not having been redeemed, defendant now claims title under the foreclosure. Plaintiff claims title through a conveyance from Edwards executed subsequent to the mortgage to Austin.
1. The question in the case is the validity of this foreclosure, and this in turn depends upon the sufficiency of the record of the mortgage in McLeod county as a basis for advertising and selling, in that county, the lands situated in Renville county. The provisions of statute bearing upon this question are as follows: Gen. St. 1878, c. 81, § 2, enumerates, as one of the requisites to the right to foreclose under a power of sale, that the mortgage containing the power has been duly recorded. Section 5 of the same chapter provides that notice of sale shall be given by publishing the same in a newspaper printed and published in the county where the premises intended to be sold, or some part thereof, are situated. Section 7 provides that the sale shall be in the county in which the premises to be sold, or some part thereof, are situated. It would seem to follow that, in order to foreclose and sell in one county mortgaged premises situated in two counties, the mortgage should be recorded in both.
We have no doubt that the record in the present case, in McLeod county, was good as to the McLeod county lands both as notice to purchasers and as a basis for the right to foreclose and sell those lands, although the Renville county lands were omitted from the record. But with such omission, we do not think this record...
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