No. 8841 | Minn. | Dec 28, 1894
Although counsel have made much of this appeal in briefs and by oral argument, a statement of the undisputed controlling, facts will show it to be an exceedingly simple case. May 11,1889, Fred. H. Boardman, owner of two lots in the city of Minneapolis, mortgaged them to one Sarah I. Hawley. Later the city authorities duly initiated and carried on proceedings in the manner prescribed by the charter to widen the street on which these lots abutted, a strip along their front three feet wide being required. June 26, 1891, the commissioners duly appointed to appraise the damages for such taking made a report and award, whereby there was awarded to said Board-man as damages to the lots the sum of $300. This report and award was duly confirmed on July 24, 1891, and the same and the said confirmation have never been vacated, set aside, or modified, and none of the condemnation proceedings have ever been annulled or vacated. In the fall of 1892 the city took possession of that part of the premises condemned and appropriated as aforesaid for public use, and has ever since occupied the same as a street or highway. October 28th of the same year a warrant for the amount so ascertained and awarded as damages was duly drawn by the city authorities, payable to Board-man. Afterwards payment of the amount was demanded by him, and ■ refused, and then the claim was assigned to plaintiff.
Default having been made in the condition found in the mortgage, it was foreclosed by a sale under the power December 5, 1892. The property as described in the mortgage was purchased at the sale by the mortgagee for the full sum due, with all costs and charges. A sheriffs certificate of sale was duly made and recorded, and no redemption was made from the sale within the time prescribed for such redemption. The object of this action was to recover the amount awarded.
By reference to the charter provisions (Sp. Laws 1881, ch. 76, subch.. 10) it will be seen that the mortgagee was as much a party thereto,, and was bound thereby to the same extent, as the mortgagor owner. No appeal having been taken from the order of confirmation made in.
Undoubtedly, the money so appropriated and set apart became collateral security for the payment of the mortgage debt, substituted in lieu of the land taken, and it so remained until the foreclosure sale, December 5, 1892, when the property thus covered by the mortgage was sold for the full amount due, with costs and expenses; and the debt was thereby extinguished. Up to this time the mortgagee had two funds for the security of her debt, the amount of the warrant and the real estate on which the mortgage remained a lien. Eesort could have been had to either fund, and if from either she realized her debt a lien upon the other terminated. That at the foreclosure sale the premises were sold, and that in the sheriffs certificate they were described as in the mortgage, is of no consequence, for a part had been as effectually released, by operation of law, as if a partial release had been formally executed and delivered.
Order affirmed.
(Opinion published 61 N.W. 554" court="Minn." date_filed="1894-12-28" href="https://app.midpage.ai/document/boutelle-v-minneapolis-city-7968667?utm_source=webapp" opinion_id="7968667">61 N. W. 554.)