122 Minn. 235 | Minn. | 1913
Action to determine adverse claims to 280 acres of land in Pennington county in which the defendants prevailed. Plaintiff appeals from an order denying a new trial.
The complaint set out plaintiff’s title by stating that on September 11, 1889, one Neis Erickson was the owner and in possession of the land; that on that date he gave a mortgage thereon to secure a note for $1,250 ;■ that the mortgage was recorded; that it was assigned by the mortgagee to George A. Dockstader on February 19, 1890; that the assignment was recorded March 4 following;
In addition to the admitted, facts, and the execution and record of the instruments relating to,this land which were recorded, the court found that George A. Dockstader died in August, 1890; that the mortgage mentioned was foreclosed by advertisement in 1891; that the notice of sale purported to be signed by George A. Dockstader, as assignee of mortgagee; that at the sale thereunder the sheriff sold the land and issued the certificate of sale to George A. Dockstader; that the executors of the estate of Dockstader did not know of the foreclosure until 1891; that in 1898 the said executors took possession of the premises and from time to time through mesne tenants farmed and tilled the tillable acreage thereof during a number of years subsequent thereto; and that the plaintiff herein holds title through mesne conveyances from said estate of George A. Dockstader, and that- either he or his grantors have, been in possession of said premises during all the periods of time from and beginning some time in the year 1898 up to and including sometime in the year 1910. The court also found that the executors assigned the mortgage in 1895 to John Fleming. The evidence however shows
The decision of the learned trial court would appear right, unless the foreclosure proceeding of 1891 is protected by the limitation .statute, section 4478, R. L. 1905, so that the defendants cannot be heard to assert its invalidity, or unless plaintiff has the right of a mortgagee in possession.
We are somewhat embarrassed by the record on this appeal. The •assignment of errors is not directed against any finding of fact nor the conclusion of law. Plaintiff moved for 26 amended findings ■of fact in connection with his motion for new trial. Nearly all of these found no support in the testimony and were properly denied. But we think in the motion for new trial the effect of the statute •cited was raised by some of the requested amended findings of fact and conclusions of law, and we may therefore consider the question without undue violence to our rules with respect to assignments of error.
Section 4478, R. L. 1905 reads: “No such sale shall be held invalid or set aside unless the action in which its validity is called in question be commenced, or the defense alleging its invalidity be interposed, with fifteen years after the date of such sale: Provided, that persons under disability as provided in section 4477 may commence such action, or interpose such defense within the time therein provided. This section shall not affect or prejudice the rights of any bona fide purchaser.” This is substantially the equivalent of chapter 31, page 82, of the Laws of 1889 found in section 6055 of the General Statutes of 1894, except that the time is reduced from 20 years fo Í5 years. Foreclosure of mortgages upon real estate by publishing the notice of sale in a newspaper according to statutory provisions came early into vogue in this state. Scarcely a title
We therefore conclude that the legislature intended to set at rest all questions concerning a mortgage foreclosure sale after the lapse of 15 years, except in case of disability of either party to an action, and in such case to extend the time 5 years after the removal of
Apparently the findings were not made with this question in view, and we doubt whether the statute was seriously urged by plaintiff at the trial, since there is no reference to it, either in the findings or in the memorandum of the learned trial court. If, therefore, any of the defendants have been or are under disability so that the statute had not run when the action was begun, it would be manifest injustice to direct judgment now to be entered for the plaintiff. A new trial is therefore necessary. But since, in case of disability of any defendant, it may become important on another trial to determine the claim that plaintiff was a mortgagee in possession, some attention should be given that feature of the case. The finding that such possession was taken by plaintiff’s predecessors in 1898 and not before is abundantly sustained. But we do not think the evidence or the findings show that the rights thus gained by the plaintiff and his predecessors have terminated. The fact, if such it be, that the defendants had entered on the land within the year before the action was begun is not enough to divest the mortgagee in possession of his rights. Such entry may have been against the protest of plaintiff, and not evidence of voluntary surrender of rights acquired. Even if the statute of limitation had not run when this action was begun, because some of the defendants may have been under disability, wc nevertheless are of the opinion that the record shows plaintiff to have the rights of a mortgage in possession. Therefore, as above indicated, a new trial is deemed advisable in order to have full and complete findings of fact from which the legal rights of the parties may be definitely ascertained and determined.
Order reversed.