256 N.W. 94 | Minn. | 1934
"No such sale [of mortgaged property] shall be held invalid or be set aside by reason of any defect in the notice thereof, or in the publication or service of such notice, or in the proceedings of the officer making the sale, unless the action in which the validity of such sale is called in question be commenced, or the defence alleging its invalidity be interposed, with reasonable diligence, and not later than five years after the date of such sale. * * *"
He argues that, since the defendants remained in possession fully a year after acquiring actual knowledge that faulty foreclosure proceedings were had without bringing legal action to set the same aside, they did not act with that degree of diligence which is required by this statute. The trial court held that this statute had no application to this case, the same being unconstitutional as against one in continuous possession of the mortgaged land. He expressed an opinion, however, that if this statute was applicable, defendants had not acted with due diligence. Judgment was entered for defendants, and plaintiff appeals therefrom.
The only question is whether 2 mason Minn. St. 1927, § 9623, is applicable here as against these defendants, who were in possession *261 of the property at the time of the attempted foreclosure and since have so continued. It is said in 2 Cooley, Constitutional Limitations (8 ed.) pp. 763-764:
"One who is himself in the legal enjoyment of his property cannot have his rights therein forfeited to another, for failure to bring suit against that other within a time specified to test the validity of a claim which the latter asserts, but takes no steps to enforce. It has consequently been held that a statute which, after a lapse of five years, makes a recorded deed purporting to be executed under a statutory power conclusive evidence of a good title, could not be valid as a limitation law against the original owner in possession of the land. Limitation laws cannot compel a resort to legal proceedings by one who is already in the complete enjoyment of all he claims."
Several of our decisions are to the same general effect. See, for instance, Baker v. Kelley,
We conclude then that 2 Mason Minn. St. 1927, § 9623, is unconstitutional in so far as it requires one rightfully in possession of land, not a stranger to the title or claiming adversely to the record owner, to bring an action within a specified time to declare invalid a mortgage foreclosure proceeding. Sanborn v. Petter,
Affirmed.