Lead Opinion
1. The primary question in this case is whether, under the terms of the mortgages, alike in form, the attorney’s fees were to he $25 for each foreclosure, and without regard to the number of lots embraced in such proceedings, or the fees were to be $25 for each lot, whether one or many were included in the foreclosure proceedings. There were three mortgages, each upon a number of lots, and each with a provision that in case of default in payment the mortgage might be foreclosed agreeably to the statute, and out of the moneys arising from the sale the mortgagee might “retain the principal and interest then accrued on the sum or sums so elected to be foreclosed for, together with all costs and charges, including twenty-five ($25) dollars attorney’s fees for foreclosing the mortgage in each and every such case.” Admitting that each of these three mortgages amounted to a separate and distinct mortgage on each lot mentioned therein to secure separate and distinct sums of money as specified, as was held in respect to the mortgage considered in Hull v. King, 38 Minn. 349, 37 N. W. 792, it does not follow that when the mortgage was foreclosed as to a number of lots an attorney’s fee of $25 for each could be charged up and included among the proper costs and charges. We think the language used is capable of but one construction, which is that the amount of attorney’s fees to be properly charged was made dependent or contingent on the number of foreclosures which became necessary, and not, as claimed by counsel for appellants, on the number of lots against which the mortgagee was compelled to proceed. If we adopt the latter view, one of the mortgages, by which 28 lots were mortgaged to secure the principal sum of $4,600, provided for an attorney’s fee of $700; another, 27 lots, mortgaged for $3,500, for a fee of $675; and the other, 16 lots, mortgaged for $1,325, for a fee of $400, — in case there was a single foreclosure of each mortgage as to all of the lots embraced in each. That such was the intention of the parties seems beyond belief, and that such enormous and outrageous fees ought not to be allowed goes without saying.
2. Fagan v. People’s S. & L. Assn., 55 Minn. 437, 57 N. W. 142, disposes of the contention that an action will not lie against a mortgagee purchaser at a foreclosure sale to recover an alleged surplus or excess arising out of such sale, and it also disposes of the further contention that an action of this kind cannot be maintained because the plaintiff, owner of the premises when the sales were made upon notices in which it appeared that the mortgagees were claiming excessive attorney’s fees, did not object or complain at that time or within the period prescribed for redemption.
3. The point is made that this action will not lie because an exclusive remedy is furnished by G. S. 1894, § 6052. There is nothing in this. The plaintiff’s right pre-existed the statute, which simply gave a new remedy, and inflicted treble damages as a penalty.
4. Prior to the foreclosure, one of the mortgagees died, and thereupon the duly-appointed and acting executors of his last will and testament joined with the surviving mortgagee in all foreclosure proceedings, including the purchases at the sales. This was authorized by Gr. S. 1894, §§ 4502, 4503. The sheriff’s certificates of sale were made out and delivered in accordance with the facts, the purchasers named being the executors, as such, and the surviving mortgagee. The estate then had and received the benefit of-the purchases and the benefit of the unauthorized acts in foreclosing. When the year of redemption expired, the title in fee to the property passed to the estate. It has received and retained the rights which accrued by reason of excessive charges for attorney’s fees, — -and herein is the distinction between this case and that of Fritz v. McGill, 31 Minn. 536, 18 N. W. 753,—and is bound by these acts.
Order affirmed.
Concurrence Opinion
I concur in the result, but I do so, as to the last point, on the ground that the executors are liable individually and out of their own estates; and the facts that in foreclosing the