Wyatt v. Quinby
| Decision Date | 17 July 1896 |
| Docket Number | 10,010--(245) |
| Citation | 68 N.W. 109,65 Minn. 537 |
| Parties | GRANT WYATT v. MARY G. QUINBY |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Hennepin county, Russell, J., denying a motion for a new trial, and also from a judgment in favor of plaintiff. Affirmed.
Order and judgment affirmed.
Chas J. Bartleson and Wm. Peet, for appellant.
Smith Pulliam & Smith, for respondent.
Action to recover a surplus upon a sale of mortgaged premises on foreclosure by advertisement.
The material facts, as found by the trial court, are substantially these: The defendant was the assignee of a mortgage upon certain real estate owned by the plaintiff, which she foreclosed on March 19, 1894, by advertisement. The notice of foreclosure was in the usual form, and stated that the premises would be sold to pay the principal and interest on the mortgage, and any further sums paid by her for taxes. Pursuant to such notice, the mortgaged premises were, on the day named, sold to the defendant for the sum of $ 6,149. There was then due to her, as principal and interest on the mortgage, $ 5,335.06, and $ 87.50 for insurance paid by her, and the expenses of the foreclosure were $ 112.60. The defendant had not paid any taxes prior to such sale, but on or about April 5, 1894, she did pay, for taxes on the premises so purchased by her, the sum of $ 603.84.
Upon these findings the trial court, as a conclusion of law, found that the plaintiff was entitled to recover from the defendant the sum of $ 603.84, and ordered judgment accordingly. The defendant moved for a new trial, which was denied, and judgment was entered in accordance with the trial court's conclusions of law. The defendant appealed from both the order and judgment.
The only respect in which the court's findings of fact are challenged by the defendant is the finding that the taxes were not paid until after the foreclosure sale, and about April 5, 1894; that is, some 17 days thereafter. The records of the county auditor's office were received in evidence without objection, and showed that the taxes in question were paid April 5, 1894. The attorney who foreclosed the mortgage, after seeing such records, testified that he would not attempt to say that the records were not correct, but that it was his intention to pay the taxes at the time of the sale, and, to the best of his recollection, he did so. He had previously testified that he had done so. Upon the whole evidence, it is difficult to see how the trial court could have found otherwise than it did; but, in any view of the case, the finding is amply sustained by the evidence.
The attorney foreclosing the mortgage, in his affidavit of costs, disbursements, and attorney's fees, made on the day of sale, included in a statement attached to the affidavit the taxes here in question, as having been actually paid. This affidavit was offered as original evidence, and excluded by the court. This ruling is assigned as error. It was correct. The taxes claimed to have been paid were no part of the "costs and disbursements, including attorney's fees embraced in the foreclosure sale," which the statute (G. S. 1894, § 6051) requires to be set forth in the affidavit to be made and filed within ten days after the foreclosure. As to the taxes, it is simply the voluntary, ex parte statement of the person making the affidavit, -- just as much so as if the statement had been as to the amount due on the note secured by the mortgage. Whether, in the absence of any statement so providing, the affidavit would be admissible in evidence as proof, prima facie, of the costs and disbursements on the foreclosure, we do not suggest any opinion.
Practically the only question presented by the record for our decision is this: Can a mortgagee, after a foreclosure of his mortgage by advertisement, and a sale of the mortgaged premises, pay taxes due thereon at the date of the sale, and reimburse...
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