Wells v. Atkinson

• Decision Date: 26 September 1877
• Citation: 24 Minn. 161
• Parties: EDWARD P. WELLS <I>vs.</I> ABIGAIL A. ATKINSON and another.
• Court: Minnesota Supreme Court

24 Minn. 161

EDWARD P. WELLS vs. ABIGAIL A. ATKINSON and another.

Supreme Court of Minnesota.

September 26, 1877.

This action was brought to recover possession of certain described premises situated in Meeker county, together with damages for their unlawful detention. The cause was tried in the district court for Meeker county, by Brown, J., without a jury. It appeared from the findings of the court that the defendant Abigail A. Atkinson, joined by her husband, mortgaged the said premises to John H. Bartholf; that said premises were sold at public vendue, January 14, 1873, under a power of sale contained in the mortgage, and duly purchased by the said Bartholf; that the sheriff, at the time of such sale, executed and delivered to Bartholf a certain certificate which contained the following clause in relation to the redemption of the land from said sale: "The above described premises are subject to redemption within the time and according to the statute in such case made and provided;" that on May 3, 1876, the said Bartholf conveyed the said premises to the plaintiff in this action, as evidenced by the record of a deed, as such record appears in the office of the register of deeds of said Meeker county; that said deed purported to have been executed in the state of Oregon, and that the certificate of acknowledgment attached thereto, as it appears of record, is in the following words:

State of Oregon, County of Grant — ss.:

I, Wm. F. McLoud, a justice of the peace within and for said county, do hereby certify that on this third day of May, A. D. 1876, personally came before me John H. Bartholf and Emma C. Bartholf, his wife, to me well known to be the same persons described in and who executed the foregoing instrument, and acknowledged that they executed the same freely and voluntarily, for the uses and purposes therein expressed.

                                                     Wm. F. McLOUD
                              Justice of the peace of Grant county, Oregon
                

That it further appeared by the said record that there was appended to the above certificate of acknowledgment a certain certificate of authentication in the following terms:

State of Oregon, County of Grant — ss:

I, James Robinson, county clerk of the county of Grant, state of Oregon, and clerk of the county court of said Grant county, (which is a court of record,) do hereby certify that Wm. F. McLoud, whose name is subscribed to the annexed deed, was, at the date of the same, and is now, a justice of the peace in and for said Grant county, duly commissioned, and qualified, and authorized by law, and full faith and credit are due to all his official acts as such, and I do further certify that the signature attached to the annexed instrument is genuine.

In witness whereof I have hereunto set my hand and affixed the seal of said county court, at my office in Oregon City, Grant county, Oregon, this sixth day of May, A. D., 1876.

                                                   JAMES ROBINSON
                [L. S.]              County clerk, and clerk of the county
                                        court of Grant county, Oregon
                

That the defendant Abigail A. Atkinson continued in the actual possession of the said lands up to the time of the commencement of this action, and that her husband, the defendant James B. Atkinson, occupied the same in her supposed right, and as her agent, claiming no present right therein himself. And further, that prior to this action the plaintiff had demanded possession of the premises, and the defendants had refused to surrender the same. The court accordingly found, as conclusions of law, that the possession of the defendants was wrongful, and that the plaintiffs were entitled to immediate possession, together with damages for the use and occupation of the land. Judgment was entered in accordance therewith, and from this judgment the defendants appealed.

Belfoy & Spooner and A. C. Smith, for appellants.

Strobeck & Plumley and Geo. L. & Chas. E. Otis, for respondent.

CORNELL, J.

1. On a sale of real property, under a power of sale in a mortgage, the officer making it is required to give to the purchaser a certificate "containing," among other things, the "date of the sale," and "the time allowed by law for redemption." Gen. St. c. 81, tit. 1, § 11. Instead of this, the certificate in the case before us contains the statement that "the above described premises are subject to redemption within the time and according to the statute in such case made and provided." Though the statute in this regard be anything more than directory, it can hardly be supposed that the legislature intended to impose upon an officer the duty of ascertaining in advance how many persons might become redemption creditors, by filing the requisite notice of intention to redeem within the year next after...