28 Minn. 6 | Minn. | 1881
Appeal from an order overruling a demurrer to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action. The complaint certainly has serious
The first point assumes that in section 24 the legislature use the word “foreclosure” in the sense of a foreclosure completed and perfected, so as to pass the title to the purchaser. This court has frequently held that, to make a foreclosure perfect, the time allowed the owner of the property to redeem must have expired; that until then the title does not pass, and that until then the sale is subject to be annulled and defeated by redemption. If that is the sense in which the word “foreclosure” is used in the section, of course this action is prematurely brought. We think, however, that is not the meaning of the word as there used, but that the legislature had in mind the. more popular sense, of indicating the proceedings resulting in and including the sale in fact, — the striking off of the property by the sheriff. Thus, section 13 speaks of the mortgage as “the mortgage foreclosed,” with reference to a time necessarily prior to the lapse of the time to redeem. Section 23 requires the party foreclosing to file an affidavit of costs and disbursements absolutely paid within 10 days after “foreclosure.” In that section the word is evidently used as
We do not find any instance in the title to which section 24 belongs, in which the legislature evidently use the word “foreclosure” in a sense including the lapse of the time to redeem. The wrong for which the statute intends to give a remedy is complete as soon as the property is struck off by the sheriff. Although the title does not at once pass, yet the practical right of the mortgagor becomes then, generally, a mere statutory right to redeem. The amount he must pay in order to redeem is fixed by the sale. He must pay that amount or lose his property. That is so, even when the mortgagee is the purchaser, unless there exist special circumstances upon which the owner may invoke the aid of a court of equity. Dickerson v. Hayes, 26 Minn. 100. If a third person become the purchaser, the mortgagor receives, as soon as the sale is made, the excess wrongfully exacted in the proceedings. Why the remedy should be postponed for a year after the wrong is consummated is not obvious. We conclude that the action may be brought as soon as the sale is in fact made.
As to the second point, there can be no question that Laws 1879, c. 66, does not repeal section 24 now under consideration. That section is part of a chapter devoted solely to regulating foreclosures of mortgages upon real estate, and the rights of the parties thereon. Chapter 66 is devoted exclusively to regulating the. matter of interest and usury, and makes no reference to foreclosures of mortgages. It does not, in terms, repeal section 24. It is claimed that it operates to repeal this section, because the latter is inconsistent with the. pro
Order affirmed