40 Minn. 479 | Minn. | 1889
In 1857, one JB'. H. Cobb, then the owner of the land in controversy, executed to one Hall a mortgage thereon, to secure his promissory note to' the mortgagee, which mortgage had the usual power of sale, and was duly recorded. Afterwards Hall executed to one Martin a power of attorney to do certain things for him, which was duly recorded. The power did not authorize Martin to assign this mortgage, but he had, otherwise than by this power, authority from Hall to sell the note and debt and assign the mortgage. Théreupon Martin sold the note and debt to one Stephen Cobb, and
The first attempt to foreclose is conceded to have been void. The second is conceded to have been valid, unless the right to foreclose was, at the time it was made, barred by the statute. The statute which plaintiff claims was in force and barred the foreclosure was chapter 52, Laws 1871, amending Gen. St. 1866, c. 81, § 1, so as to read: “Section 1. Every mortgage of real estate containing therein a power of sale, upon default being made in any condition of such mortgage, may be foreclosed by advertisement within ten years after the maturity of such mortgage on the debt secured thereby, in the cases and in the manner hereinafter specified: provided, that mortgages that have been foreclosed, or where an attempt has been made to foreclose the same, by publication of notice of sale of said mortgages, are hereby exempted from .the operation of this act.” The appellant urges that the proviso comes within what is termed partial or class legislation, and is therefore void, while the remainder of the act is valid. The respondent urges — First, the proviso is not class legislation; second, if it be void for.that reason, then the whole act falls with it.
It is apparent that, if the appellant is right, the right to foreclose this mortgage under the power was barred before the second foreclosure, and consequently that foreclosure was void. If the respond-, ent is right as to either of his propositions, or if he is right in the
Now, a statute limiting the time for foreclosing under powers cannot be charged with making an arbitrary classification merely because it places in one class mortgages in the predicament we have-described, and in another class those as to which there has been no. attempt to foreclose. For the purpose of applying rules to different, subjects, the legislature cannot adopt a mere arbitrary classification'.. It is sometimes difficult for a court to say whether a classification, adopted by the legislature is or is not arbitrary. That there is a difference between the cases included within a provision of law and those excluded — a difference sufficient to distinguish the one from the other-—will not justify applying different rules to them. As said in State v. Hammer, 42 N. J. Law, 435, 440, “the true principle requires something more than a mere designation by such characteristics as will serve to classify.” What will justify placing subjects in different
Judgment affirmed.