46 Minn. 164 | Minn. | 1891
This was originally commenced as an action for partition, the plaintiff alleging that he was the owner of one undivided half, and the defendant Martha E. Lewis the owner of the other undivided half, of the lot in controversy; that said Lewis had executed a mortgage on her half to one Ransom, who had assigned it to plaintiff, who had foreclosed it under a power, and himself become the purchaser at the mortgage sale; also that the defendants were in possession of the whole property. The relief prayed for was that a partition be made, or, if it could not be made, that the property be sold, and all liens thereon be paid out of the proceeds, and the remainder thereof divided between the owners, according to their respective interests. When this action was commenced, the time for redemption from the foreclosure sale had not yet expired, as we understand the facts. In the mean time the time for redemption ex
The only important question in the case arises upon the sufficiencyof the service of the copy of the notice of sale upon the defendant Martha E. Lewis, who, with her husband and codefendant, were in possession of and living on the premises as their place of residence. In form, the notice was clearly sufficient. It was addressed and directed to both defendants, and, under the evidence and findings of the court, it must be taken as true that this notice was served by plaintiff in person by leaving it at the house of Mrs. Lewis’s usual abode with her husband, then resident therein, and at the same time telling him that it was a notice for Mrs. Lewis. That this was good service cannot be doubted, provided the mortgagee himself is, under the statute, a competent person to make it, and this presents the only question of any importance in the case. Gen. St. 1878, c. 81, § 5, provides that “such notice shall be served in like manner as summons in civil
Judgment affirmed.
After the filing of the foregoing opinion, a reargument was asked for and granted, and was had at the April term, 1891; and the following opinion was filed May 12, 1891:
The only question upon which a reargument of this case was granted was the sufficiency of the notice of sale as respects taxes upon the mortgaged premises. The notice, after stating the amount then claimed to be due on the mortgage, the names of the parties, the date of the mortgage, the time and place of record, and the description of the mortgaged premises, then states that, by virtue of a power of sale, the premises will be sold at public auction to the highest bidder, at a time and place specified, “to pay said debt and interest, and the taxes, if any, on said premises, and $25 attorney’s fees, as stipulated in the mortgage, and the disbursements allowed by law.” The statute requires that the notice shall specify, among other things, “the amount claimed to be due thereon, [the mortgage,] and taxes, if any, paid by the mortgagee at the date of the notice,” (Gen. St. 1878, c. 81, § 5;) and the point made against this notice is that it does not specify the amount of taxes for the payment of which the land is to be sold. We do not construe this notice as claiming that anything was then due on the mortgage for taxes previously paid by the mortgagee, but, on the contrary, that the amount claimed as due was wholly for principal and interest. All we construe the notice to mean is that the proceeds of the sale, if sufficient, will be ápplied, so far as necessary, in payment of any taxes on the premises which may be due and payable at the date of the'sale. If any taxes become due' and payable after the date of the notice, and the mortgagee should, for the purpose of protecting his security, pay them before the day of sale, we think there can be no doubt but that, if the property brought enough, he might retain sufficient of the proceeds of sale to reimburse himself; or, if he concluded to allow the taxes to remain
Vanderburgh, J., took no part in this decision.