Webb v. Lewis

Citation45 Minn. 285,47 N.W. 803
PartiesWEBB v LEWIS ET AL.
Decision Date20 January 1891
CourtSupreme Court of Minnesota (US)

OPINION TEXT STARTS HERE

(Syllabus by the Court.)

A mortgage executed in April, 1877, contained a power of sale authorizing the mortgagee, in case of default in the conditions of the mortgage, to sell the mortgaged premises at public auction, and convey the same to the purchaser, agreeably to the statute in such case made and provided. Held, that this was a complete and valid common-law power, capable of being executed, even in the absence of any statute regulating the manner of its exercise. Also that there is nothing in the retrospective application of chapter 53, Laws 1878, (Gen. St. c. 81, tit. 1,) to the mode of executing this power, which conflicts with the terms of the mortgage, or impairs its obligation as a contract. Hence that a sale under the power made in 1879, in accordance with this statute, was valid.

Appeal from district court, Ramsey county; BRILL, Judge.

S. & O. Kyp and Eller & Howe, for appellant.

Warner, Richardson & Lawrence, W. K. Gaston, O. E. Holman, H. C. McCartey, Wm. T. Moore, and M. B. Koon, for respondents.

MITCHELL, J.

On March 3, 1877, the legislature, by chapter 121 of the General Laws of that year, repealed all of title 1, c. 81, Gen. St. 1866, relating to foreclosure by advertisement under a power of sale, except sections 3 and 4, (authorizing and regulating foreclosure for separate installments of the mortgage debt,) section 9, (requiring separate tracts to be sold separately,) section 11, (prescribing the form of certificate which the officer making the sale should execute to the purchaser,) section 14, (prescribing the manner of making redemption,) section 15, (prescribing the form of the certificate of redemption,) and section 17, (providing that the interest acquired on such foreclosure sale should be subject to the lien of attachment or judgment.) On April 12, 1877, one Isaac W. Webb, then the owner of the land here in controversy, and plaintiff, his wife, executed to one Laimbeer a mortgage thereon to secure payment of a note for $4,000 and interest. This mortgage contained the following provisions: “The said first parties agree that if the maker of said note shall fail to pay any of said money, either principal or interest, when the same becomes due, or to conform to or comply with any of the foregoing conditions or agreements, the whole sum of money herein secured shall thereupon become due and payable at once, and the said parties of the first part do hereby authorize and empower the said party of the second part, his heirs, executors, administrators, or assigns, to sell the property hereinbefore described at public auction, and convey the same to the purchaser in fee-simple, agreeably to the statute in such case made and provided, and out of the moneys arising from such sale to retain the principal and interest which shall then be due on said note, together with all costs and charges, and also the sum of one hundred dollars as attorney's fees, and pay the overplus, if any, to the said parties of the first part, their heirs, administrators, or assigns, or the holder of said note may, at its option, proceed in court and foreclose the mortgage. The attorney's fee shall be due and payable upon the publication of the notice required by the statute, or, in case of foreclosure, upon the filing of a bill, and the same shall be included in the amount to be made by party selling, or by the sheriff or other proper officer under the said statutory sale, or on annual or special execution, with the other money, interest, and costs.” On March 7, 1878, the legislature passed an act (Laws 1878, c. 53; title 1, c. 81, Gen. St. 1878) “to provide for the foreclosure of mortgages on real estate by advertisement,” which was substantially a re-enactment of the statute repealed the year before, except that, in addition to publication of the notice of sale, it required a copy of it to be served personally upon the person in possession of the mortgaged premises, if actually occupied. This act was, by its terms, made applicable to every mortgage theretofore or thereafter executed containing a power of sale. Default having been made in the conditions of the mortgage, Laimbeer proceeded in 1879 to foreclose under the power of sale in pursuance of the provisions of the act of 1878, the notice of sale having been not only published, but also served personally on Webb, and plaintiff, his wife, and on their tenant, who occupied the premises. The sale was made by the sheriff, pursuant to the notice, at public auction, at the front door of the court-house, in St. Paul, on March 27, 1878, the mortgagee himself being the purchaser. No redemption having been made, at the expiration of a year after the sale the mortgagors surrendered the premises to Laimbeer, and he and his numerous grantees have ever since remained in possession. The...

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12 cases
  • Heitsch v. Minneapolis Threshing Machine Company, a Corporation
    • United States
    • North Dakota Supreme Court
    • December 12, 1914
    ... ... Dray v. Dray, 21 Ore. 59, 27 P. 223; Tharp v ... Kerr, 141 Iowa 26, 119 N.W. 267; Gilchrist v ... Comfort, 34 N.Y. 235; Tinkcom v. Lewis, 21 ... Minn. 132; Dickerson v. Hayes, 26 Minn. 100, 1 N.W ... 834; Hoover v. Johnson, 47 Minn. 434, 50 N.W. 475; ... Littler v. People, ... 334, 115 P. 512; State ex rel ... National Bond & Secur. Co. v. Krahmer, 105 Minn. 422, 21 ... L.R.A. (N.S.) 157, 117 N.W. 780; Webb v. Lewis, 45 ... Minn. 285, 47 N.W. 803; Northwestern Mut. L. Ins. Co. v ... Neeves, 46 Wis. 147, 49 N.W. 832; Tuolumne ... Redemption Co. v ... ...
  • National Tailoring Co. v. Scott, 2392
    • United States
    • Wyoming Supreme Court
    • August 3, 1948
    ... ... imposing a limitation upon the exercise of a right to execute ... a power of sale in a mortgage do not impair any contractual ... right. Webb v. Lewis, 45 Minn. 285, 47 N.W. 803; ... Davis v. Savage, 168 P.2d 851, 858 (N. M.) 1946 ... RINER, ... Chief Justice. KIMBALL, J., and ... ...
  • James v. Chapman
    • United States
    • Wyoming Supreme Court
    • June 9, 1936
    ... ... remedy. James v. Stull, 9 Barb. (N. Y.) 482; ... State v. Court, (S. D.) 249 N.W. 631; 25 R. C. L ... 792; Webb v. Moore, 25 Ind. 4; Hopkins v ... Jones, 22 Ind. 310; Atkinson v. Duffy, 16 Minn ... 45; Orvik v. Casselman, 105 N.W. 1105; 59 C. J ... 1188, ... should be subject to future legislation as to the manner of ... exercising it." ... In ... Webb v. Lewis, 45 Minn. 285, 47 N.W. 803, the power of ... sale was to be exercised "agreeably to the statute in ... such case made and provided." The court, ... ...
  • Scott v. District Court of Fifth Judicial District of Barnes County
    • United States
    • North Dakota Supreme Court
    • April 28, 1906
    ... ... law which might be in force when the mortgagee resorted to ... the remedy. James v. Stull, 9 Barb. 482; Webb v ... Lewis, 45 Minn. 285, 47 N.W. 803. So construed, it is ... plain that the stipulation for the remedy contemplated that ... it should be ... ...
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