Action to remove a cloud upon title. We are called upon to consider the state of the title to the land in question, and the equitable rights of the parties. In December, 1855, Alexander Moore, who then owned a tract of 120 acres of land, including the lot here in controversy, executed to Joseph Hall, a resident of the state of New York, a mortgage upon the same, to secure the payment of $277.37, with interest. It contained the usual power of sale. It was recorded at the time above stated. In the following year (1856) Moore conveyed the land by warranty deed to Jacob B. Bausman and Zenas E. Britton, the covenant respecting incumbrances containing an express exception as to the Hall mortgage. From those grantees the plaintiffs, by inheritance and by deeds of conveyance, have acquired the legal title, unless that was divested by proceedings under the mortgage. The defendant’s claim is through the foreclosure of the Hall mortgage. That foreclosure is assailed upon the ground that the mortgagee, Hall, had died before the foreclosure proceeding was instituted. He died in June, 1865. About five years after his death, and in the year 1870, proceedings were instituted and completed for the foreclosure of the mortgage by a sale of the premises ¡under the power. These proceedings were regular in form and in accordance with the statute regulating such foreclosures. To the printed notice of sale were appended the names and designations “Joseph Hall, mortgagee,” and “R. B. Galusha, attorney for mortgagee.”
The foreclosure proceeding was wholly without authority, and void. The notice was of no legal effect. Hall, the mortgagee, being dead, could neither exercise the power of sale, nor confer authority upon another. A notice in his name and purporting to be by his authority, could be of no legal effect. His name had no potency after he had ceased to exist. White v. Secor, 58 Iowa, 533, (12 N. W. Rep. 586.) The offer to show that Galusha in fact had purchased the note and mortgage from one Lund, and that, not knowing of Hall’s death, he conducted this proceeding in good faith, and really in his own behalf, was not material. In the first place, the offer did not go far enough to show that Galusha thereby acquired any interest in the note and mortgage. It was not assigned, and, the note being unindorsed by Hall, to whose order it was payable, the mere possession by Lund did not show ownership. Van Eman v. Stanchfield, 10 Minn. 197, (255;) 13 Minn. 70, (75;) Hayward v. Grant, 13 Minn. 154, (165.) The mortgage was an incident to the note, and not the principal thing. The action of a mere stranger could have no effect. Hayes v. Lienlokken, 48 Wis. 509, (4 N. W. Rep. 584;) Miller v. Clark, 56 Mich. 337, (23 N. W. Rep. 35.) Again, the notice was not, upon its face, and did not purport to be, the act of Galusha, but of Hall, the mortgagee. It is an essential quality of a notice that it appear to be given by competent authority, — Niles v. Ransford, 1 Mich. 338, (51 Am. Dec. 95;) Roche v. Farnsworth, 106 Mass. 509; — and a notice which, upon its face, is declared to be the act of a designated person, and which, as such, would be void, cannot be made effectual by proof that it was really the act of another and undisclosed person, not even standing in a relation of privity with the person in whose name the notice was given. A notice by a mere stranger can effect nothing. It is unnecessary to consider whether the merely equitable assignee
Anticipating here some facts referred to hereafter, we will say that the claim that the defendant, deriving his claim of title through Galusha, is in the position of a mortgagee in possession, cannot be sustained, for the reason just considered, that it does not appear that Galusha ever acquired any interest in the mortgage.
The defendant offered to prove that he was in the actual possession of the land; and it is claimed that in such a case an action of this nature will not be entertained in favor of the holder of the legal title. This position is. sustained by very many authorities, but the rule was long ago established to the contrary in this state. Donnelly v. Simonton, 7 Minn. 110, (167;) Hamilton v. Batlin, 8 Minn. 359, (403,) (83 Am. Dec. 787.)
Again, is is contended that Laws 1883, c. 112, has interposed a limitation which bars this action. By the terms of that act, the sheriff’s certificate of sale theretofore or thereafter made under a power contained in a mortgage, is madeprima facie evidence that all the requirements of law have been complied with, and of title in fee after the expiration of the time for redemption; “and no such sale shall be held invalid or set aside by reason of any defect in the notice thereof, or in the publication or posting of such notice, or in the proceedings of the officer making such sale, unless the action in which the' validity of such sale shall be called in question be commenced, or the defence alleging its invalidity be interposed, within five years after the date of such sale.” The act went into operation six months after its passage. Whatever may be the purpose and scope of this act, it cannot reasonably be construed as being applicable to a case where the authority to exercise the power was wholly wanting, and where the notice. and sale were wholly unauthorized, and not merely irregular by reason of some want of conformity with the statute; otherwise any stranger to the mortgage and to the estate might acquire a title divesting that of the mortgagor by publishing an obscure notice of sale, subscribed by himself or in the name of the mortgagee, or without any signature or disclosed authority, and by causing a sale to be made
The action was not, within the general statute of limitations, barred by the lapse of six years, as being an action for relief on the ground of fraud.
Are the plaintiffs chargeable with Buch laches that the peculiar remedies of a court of equity will be refused as against an innocent purchaser for value of an apparently valid title ? It is contended on the part of the plaintiffs that the defence of a bona fide purchase without notice is not available „as against the legal title, even in a court of equity; and this position is not without authority in its support. Both reason and the weight of authority are, however, to the contrary. Bassett v. Nosworthy, Finch, 102, 2 Lead. Cas. Eq. 1, and notes; Phillips v. Phillips, 4 De Gex, F. & J. 208, 216, et seq.; Bisp. Eq. § 264; 2 Pom. Eq. Jur. §§ 740, 742, and cases cited. The principle upon which equity refuses to grant relief in such cases is equally applicable whether the plaintiff has or has not the legal estate. He cannot invoke equitable relief and at the same time insist that the court shall not regard any fact in the conduct or relations of the parties which may show his suit to be inequitable and against conscience. The defendant offered to prove that from a time a little 'subsequent to the conveyance from Galusha in 1873 down to the time of the trial, — a period of some 12 years, — the successive grantees of this apparent title, including the defendant, had been in actual possession of this land; that they had all purchased for valuable considerations, without notice or knowledge of any fact invalidating the foreclosure proceedings, and that they had paid the taxes. This
Whatever injurious consequences might naturally be anticipated! as likely to result from delay.must obviously be regarded in determining whether delay has been justifiable or culpable. A reason why equity discourages stale claims is based upon the consideration that the lapse of time has or may have been prejudicial by reason of the difficulty of proving the facts, or of the intervening of equities in favor of innocent persods, or perhaps from other causes. The policy manifested in our registry laws, to make the public records show the true state of the title to real property, has been such as to en- ■ courage purchasers to rely upon what the record discloses. That purchases of real estate are commonly made from those who appear to have the record title, without other inquiry than such as the records or the occupancy of the land may suggest, is a matter of common knowledge, of which no one can assume ignorance. Without de
Some other circumstances are pressed upon our attention, which, in connection with the alleged possession of the defendant and his grantors, are worthy of consideration, as having some bearing upon the question whether this action so tardily brought should be entertained with favor. We refer to the conduct of the plaintiffs, and those under whom they claim, which is relied upon by the defendant as going to show an abandonment of their interest in the.land. We do not, at this time, pass upon the weight of this evidence, but only
We are of the opinion that in rejecting the evidence offered the learned judge did not fully appreciate its effect as bearing upon the equities of the respective parties, and that there should be a new trial.
Ordered accordingly.