Dunning v. McDonald

54 Minn. 1 | Minn. | 1893

Gilfillan, C. J.

Defendant McDonald executed to plaintiff Dunning a mortgage upon real estate, with the usual power of sale, dated July 8, 1890, recorded July 19, 1890. March 28, 1891, the mortgagee began to foreclose under the power, by notice in her name, as mortgagee, first published on that day. March 31, 1891, she duly assigned to one of the other plaintiffs an undivided one-sixth of the debt and mortgage; to another, an undivided one-sixth; to another, an undivided one-sixth; to another, an undivided two-sixths ; leaving an undivided one-sixth in herself. One of these assignments was recorded April 29, 1891, before the last publication of the notice of sale; the others, not till after the foreclosure sale. The publication of the notice, as first published, in the name of the mortgagee, was continued the proper time, and the sale was made May 11, 1891. The question is, was it a valid foreclosure?

It was so, unless by reason of the assignments, and the recording of one of them, after the first publication of the foreclosure notice, and before the sale.

The power of sale contained in a mortgage, being coupled with an interest, passes to the assignee of the mortgage. It cannot be severed from the legal owmership of the mortgage. It is indivisible, and, no matter how many owners of the mortgage there may be, there is but one power. If there be two or more legal owners, whetlier.as original mortgagees or as assignees, or both, the power is in them, jointly. The statute contemplates that it shall be exercised by the person or persons in whom it resides,—that is, by the holder or holders of the legal title to the mortgage, Bottineau v. Aetna Life Ins. Co., 31 Minn. 125, (16 N. W. Rep. 849,)-provided he or they be qualified to exercise it, by his or their title having been made matter of record; and if there be an assignment of a part interest to one whose assignment is not of record, as he cannot exercise it, and the joining of his name to the foreclosure proceeding can add nothing to it, his name need not be joined, but the power must be exercised by the owner of the remaining interest, who is qualified by his title appearing of record. That is, in the case of an assignment, the power is not to be deemed as fully vested in the assignee, so that he may foreclose, or so that he must join with the others in foreclosing, until his assignment is recorded. If a mortgagee’s interest in the mortgage has ceased, even pending the foreclosure proceeding, he cannot complete the foreclosure. Niles v. Ransford, 1 Mich. 338. For the purpose of foreclosure the notice of sale must show that it is the act of those in whom the power is vested; that is, it must be signed by him or them. In the case of two or more joint mortgagees it could hardly be claimed that a signing by one alone would do. The names of all should be signed. We do not decide — for the point is not in the case — but that each may be regarded as the agent of all, so as to have authority to use their names for the purpose of foreclosure. But it must be the act of all. Where there are joint owners of a mortgage it can make no difference, in this respect, how they became such, — whether as original mortgagees, or by assignment.

For the purpose of foreclosure it is not enough that the first step-taken, to wit, the first publication of the notice, is regular, and by the proper person. Each successive step, till the last required to be done by the holder of the power, must be regular, and by the proper-person. Niles v. Ransford, supra. If it be necessary that the notice at its first publication be signed by all qualified holders of the power, it must be so with each publication,—with each act that the holders of the power are required to do. Whether, the publications being regular, a change in the record ownership of the mortgage between the last publication and the day of sale will affect the regularity of the sale itself, — that being, in a sense, the official act of the sheriff, —it is unnecessary to decide.

(Opinion published 55 N. W. Rep. 864.)

For the reason that, at the time of some of the necessary publica* tions in this case, there was a record owner of an interest in the mortgage whose name was not signed to the notice, the sale was invalid.

Order affirmed.