60 Minn. 393 | Minn. | 1895
The respondent, on April 1, 1893, foreclosed by advertisement its mortgage, made by the appellants, which was a lien on their real estate. It retained from the proceeds of the sale of the mortgaged premises, for attorney’s fees, as. stipulated in the mortgage, $50; for printer’s fees, $23; and for other necessary disbursements, $6.75, — all of which it actually paid or incurred, as the expenses of such foreclosure, except that it paid $11.50 only for printer’s fees. No affidavit of the amount actually paid or incurred for attorney’s fees and disbursements on such foreclosure was ever made or filed, as required by law or otherwise, until after the commencement of this action, which was brought to recover three times the amount so retained. The affidavit was made and filed March 26, 1894. The appellants had judgment in the district court for $34.50, three times the amount retained for printer’s fees and not paid. From this judgment they appealed.
. .A failure to file the affidavit does not affect the validity of the sale, as it is no part of the sale proceedings. Johnson v. Cocks, 37 Minn. 530, 35 N. W. 436. But how, if at all, does it affect the right of the mortgagee to retain from the.proceeds of the sale any sum, by way of indemnity, for attorney’s fees .and disbursements? This is the question presented by the record for our decison. Its answer depends upon the construction to be given to G. S. 1894, § 6051, which provides that, within 10 days after foreclosure of any mort
It is true, as claimed by respondent, that the right of a mortgagee to attorney’s fees is a contract right, but the contract was made subject to the statute with reference to the payment of such fees on the foreclosure of mortgages. The respondent has the contract right to retain from the proceeds of the sale of the mortgaged premises attorney’s fees and disbursements paid or incurred, provided it first proves the fact of such payment by affidavit filed within the time required by the statute, otherwise not. The respondent failed to file the necessary affidavit in this case, and it follows that, after the expiration of the time limited for the making of such proof, it held the amount included for attorney’s fees and disbursements in the sum for which the mortgaged premises sold, as surplus for the appellants, which they are entitled to recover. They are not, however, entitled to recover three times the amount of this surplus, bécause G. S. 1894, § 6052, has reference only to the amount retained, and not actually paid or incurred, by the party foreclosing, which is not this case, except as to the $11.50 retained for printer’s fees in excess of the amount actually paid.
The appellants, then, are entitled to recover $34.50, and $68.25 surplus, in all the sum of $102.75; and the cause is remanded to the district court of Hennepin county, with the direction to so modify the judgment. It is so ordered.