Willard v. Finnegan

• Decision Date: 07 February 1890
• Citation: 42 Minn. 476,44 N.W. 985
• Parties: WILLARD v FINNEGAN.
• Court: Minnesota Supreme Court

42 Minn. 476

44 N.W. 985

WILLARDvFINNEGAN.

Supreme Court of Minnesota.

Feb. 7, 1890.

(Syllabus by the Court.)

1. A sale, under a power in a mortgage, in gross as one parcel, of several separate and distinct tracts of laud, is not void, but only voidable, for good cause shown, as that it was the result of fraud, or that prejudice resulted to the mortgagor or owner of the equity of redemption.

2. A. executed a mortgage to M., and subsequently conveyed to W. M. foreclosed his mortgage, and purchased the property at the sale. Neither A. nor W. redeemed from the sale, but a redemption was made by F., as a judgment creditor of A., who obtained a certificate of redemption. But before F. redeemed A. duly tendered him the amount due on his judgment, which he refused to accept. Held that, as between F. and W., (who had no interest in the property,) the redemption was valid; that M., the purchaser at the mortgage sale, alone could raise the question whether the tender discharged the lien of F.'s judgment, so as to terminate his right to redeem.

Appeals from district court, Hennepin county; SMITH, Judge.

L. E. Stetler, for appellant.

A.D. Smith, for respondent.

MITCHELL, J.

Action to determine an adverse claim of defendant to real property of which plaintiff alleges she is the owner. The defendant denies plaintiff's title, alleges that he is the owner, and asks that it be so adjudged. Plaintiff's title depends upon the validity of a sale, under a power, on a mortgage executed by her grantor, one Abbott, to the Maloneys. Defendant's title depends upon a redemption by him, as a judgment creditor of Abbott, from the sale on the Maloney mortgage. The facts are that Abbott executed to the Maloneys a mortgage on a piece of land according to government description, then constituting a single tract; but subsequently he platted the land, dividing it into urban lots and blocks, the Maloneys not joining in the plat. Under these facts, the Maloneys would doubtless have bad the right to sell the entire premises as one tract, as it was described in their mortgage; at least, in the absence of a request that the sale be in separate parcels, by one interested in the property, who had some equitable right to have it sold in that way in order to protect his interests. Johnson v. Williams, 4 Minn. 260, (Gil. 183;)Paquin v. Braley, 10 Minn. 379, (Gil. 304;)Abbott v. Peck, 35 Minn. 499,29 N. W. Rep. 194. But where the mortgagor, subsequent to the mortgage, divides the premises into separate tracts, as by platting it into lots and blocks, the mortgagee has the right to adopt this division, and sell the property, as the Maloneys did in this case, as lots and blocks, according to the descriptions in the plat. But, if he does so, properly he should sell the different tracts according to the plat separately; whereas, in the present instance, although described in the notice of sale according to the plat as separate lots and blocks, all were sold together for one gross sum. This, it is claimed, rendered the sale absolutely void. The statute provides that, “if the mortgaged premises consist of separate and distinct farms or tracts, they shall be sold separately.” Gen. St. 1878, c. 81 § 9. Whether a sale, contrary to the statute, renders it absolutely void, or only voidable, where it is made to appear that there was fraud, or that the disregard of the statute resulted in actual prejudice to the mortgagor or owner of the equity of redemption, is a question upon which there is some conflict of authority, at least in the case of non-judicial sales. As early as Tillman v. Jackson, 1 Minn. 183, (Gil. 157,) it was held that a similar provision as to sales on execution was only directory, and that a violation of it by the sheriff would not invalidate...