78 Minn. 249 | Minn. | 1899
Lead Opinion
For the purposes of this appeal, the following statement of facts, according to their legal effect, is sufficient: An executor appointed in the state of Connecticut, the domicile of his testator, assigned a mortgage belonging to the estate of the latter, which contained the usual power of sale, to the mortgagee, his heirs, executors, administrators, and assigns. The certificate of acknowledgment of the assignment was in the following form:
“Personally appeared [the name of the executor], executor of the will of [name of the testator], late of Hartford, deceased, signer and sealer of the foregoing instrument, and acknowledged the same to be his free act and deed as such executor, before me.
Alfred Spencer, Jr.,
[Notarial Seal.] Notary Public.”
The assignee, in the exercise of the power, sold the premises, and at the sale he himself became the purchaser. No authenticated copy of the executor’s appointment as executor was filed for record in the office of the register of deeds of the county in which the foreclosure was commenced and in which the land was situated. The time of redemption from the sale having expired, and. no redemp
1. The certificate of acknowledgment would have been sufficient prior to the passage of Laws 1883, c. 99 (G-. S. 1894, §§ 5650, 5651). The notary’s knowledge of the identity of the person appearing before him with the person who executed the instrument is implied by his certificate that it was executed by the executor of the will of the testator. Brunswick-Balke-Collender Co. v. Brackett, 37 Minn. 58, 33 N. W. 214. The act of 1883, at least as to acknowledgments falling under the first section, is merely permissive, and not mandatory. Any form of acknowledgment which would have been good previously is still sufficient. The act has no repealing clause. It starts out by providing that the following forms may be used, and in the second section refers back to them as “the forms above sanctioned.”
2. The second question is whether the filing of an exemplified copy of the appointment of the executor assignor was a prerequisite to the right of his assignee to exercise the power of sale. Laws 1876, c. 41 (G. S. 1894, § 6053), provides that
“Any executor or administrator duly appointed in any other state or county may foreclose by advertisement any mortgage of land in this state, belonging to the estate represented by him, in the same manner, and under like restrictions, as a resident, appointed in this state, may do: provided, that before commencing, any such foreclosure, an authenticated copy of his appointment as such executor or administrator is filed for record in the office of the register of deeds of the county in which such foreclosure is to be commenced.”
The legislature apparently assumed that an executor or administrator appointed in another state or county had no authority to
The cardinal rule of construction is to ascertain the intention of the legislature. But this must be ascertained from the language of the statute. If this language is plain and unambiguous, the legislature must be intended to mean what they have plainly expressed, and consequently no room is left for construction. There is no ambiguity of language here. By its clear and plain language, this proviso applies only to the exercise of the power by the executor or administrator. The mere fact that there existed the same reasons for applying the same condition to the exercise of the power by an assignee of the executor or administrator will not justify a court in including such a case within the statute when, according to its plain and unequivocal language, the legislature has omitted it. The suggestion that the executor could not give his assignee any greater rights than he himself possessed is, in our judgment, without force. That is true as to rights of property in the mortgage, but it is not necessarily true as to the right to exercise the power
Defendants’ counsel, in support of their contention, also cite Cl. S. 1894, §§ 4715, 4716. There is nothing in these sections at all bearing upon the question under consi deration. They apply to domestic as well as foreign executors and administrators. To give them any application to this case, it would be necessary to construe section 4716 as meaning that no assignment of a mortgage by either a foreign or domestic executor or administrator is valid, unless an exemplified copy of his letters testamentary or of administration had been previously filed in the county in which the mortgaged premises were situated. No such construction has ever been suggested or dreamed of by any one. The sole purpose of this section is to provide a method of securing, in the county where the land is situated, a perfect record chain of title, upon which parties dealing with property may rely, and which will furnish convenient evidence of their title.
Judgment affirmed.
Concurrence Opinion
I concur in that part of the opinion which holds that the acknowledgment is sufficient. But I cannot concur in that part which holds that although under G. S. 1894, § 6053, a foreign executor or administrator must record an authenticated copy of his appointment in the office of register of deeds before he can foreclose by advertisement a mortgage of land in this state, his assignee may foreclose without filing such copy.
As admitted in the foregoing opinion, a foreign executor or administrator had, before the enactment of this section, a right to