173 N.W. 859 | S.D. | 1919
Lead Opinion
Plaintiff, Loomis, who is respondent here, brought an action to quiet title against Julius C. Stoddard, de
So far as material here, the findings recite that on the 5th of-May, 1913, Julius C. Stoddard and Annie Stoddard, his wife, mortgaged the premises in controversy to J. D. Newcomer Company to secure a loan of $600, and on the same date executed a commission mortgage to said company on the same premises for $60. The mortgagors having made default in payment of the last-mentioned mortgage, J. D'. Newcomer Company foreclosed under the power contained in the mortgage. Notice of foreclosure sale was d-uly published, and on March 25, 1916, the mortgaged premises were sold to J. D. Newcomer Company for $98.69, being the full amount due on the mortgage with costs of foreclosure, and a certificate of sale issued. Thereafter J. D. Newcomer Company, apparently having sold the first mortgage, and the mortgagor having defáulted in payment of the taxes due on said land', bid in the-property at tax sale, and received a tax'sale certificate. On the 21st of February, 1917, J. D. Newcomer Company assigned the certificate of foreclosure sale, and also the tax sale certificate, to Meigs & Johnson, and on March 27, 1917, no redemption front- foreclosure sale having -been made, a sheriff’s deed issued to them. On February 28,-1917, they paid the taxes accruing that year, and on April 3-, 1917, surrendered’ for cancellation the tax sale certificate. On June 12, 1917, Meigs and Johnson, in consideration of $3,680, -conveyed the premises to the plaintiff, P. W. Loomis, deducting from' the purchase price the amount of the -unpaid first mortgage. Thereafter plaintiff, Loomis, paid accruing taxes, and on May 28, 1918, paid the principle and interest due on the first mortgage.
It is conceded that the foreclosure proceedings were regular and in strict -compliance with the statute, except an alleged defect in the published notice of sale. The land was descirbed in the recorded mortgage as the “northwest quarter of section nine (9). in township one hundred nineteen (119), range sixt)''-eight (68),
It is therefore apparent from all the recitals in the notice itself that the figures “119” áre correct; and no one desiring to. bid at the sale could, by any possibility, be mislead as to the idem tity of the property mortgaged.
In Lindsey v. Delano, 78 Iowa, 350, 43 N. W. 218, it was held that a notice of foreclosure, the description in which located the land, in the wrong congressional civil township, but which further described it so that it could be identified, was sufficient.
In Salisbury v. Murphy, 63 Neb. 415, 88 N. W. 764, the
“We know judicially that there is no real estate in Lincoln ■County west of the ninth meridian and that there are lands lying in said county in township 14 north of range 31 west of the sixth meridian.”
In McCardia v. Billings, 10 N. D. 373, 87 N. W. 1008, 88 Am. St. Rep. 729, the court said:
“W'e hold that the statute was substantially complied with when the notice itself states facts correctly pertaining to the record, which record, if examined, would conclusively show the error in the notice.”
In Iowa Investment Co. v. Shepard, 8 S. D. 332, 66 N. W. 451, this court held that — -
“Mere inaccuracies, not calculated to be misleading, are insufficient to invalidate the sale, in the absence of the claim that any one has been injured.”
There is no claim, proof, or pretense in the instant case that the mortgagor or any other person has been, in fact, misled to his prejudice, or could have been mislead by reason of the description of the township in the notice of sale. We are of the view that the notice in this case is a substantial compliance with the statute. See, also, Newman v. Jackson, 12 Wheat. 570, 6 L. Ed. 732.
“The court finds that the property was, at the time of the sale, of the value of $600; yet the sale made by Smith was for $10.60 — about one-sixtieth of its value, and just the amount of the sheriff’s fees, and the fee for recording the certificate of sale. No court of equity would permit such a sale to stand, if challenged by parties interested, especially when made under a power of sale, unless forced to do so by the well-established rules of equity. * * * A court of equity, in the exercise of its equitable powers, will scrutinize with care sales made under powers of sale contained in the mortgage; and, where there is great inadequacy of consideration, it will be astute in extracting from the facts of the case sufficient to justify annulling the sale.”
The record discloses that within 60 days after the foreclosure sale plaintiff was notified, and received actual knowledge of the foreclosure, and was advised to redeem the property and save his title, which lie refused and neglected to do. Under such circumstances the equities are not unequal.
Appellant concedes that inadequacy "of price alone would not 'warrant setting aside a sale made in substantial compliance with "the statute. We hold that the notice in this case was a substantial compliance with the statute, and for that reason deem it unnecessary further to consider the inadequacy of price or the supposed inequities of appellant.
. The ordér and judgment of the trial court are affirmed.
Dissenting Opinion
(dissenting). I am unable to agree with •Judge 'SMITH'S' conclusion herein, and I think he has failed to recognize well-established rules of law. I ibelieve Judge Corson stated the correct rule of law when, in Stacy v. Smith, 9 S. D. at page 142, 68 N. W. at page 199, he said:
“A court .of equity, in the exercise of its equitable powers, will scrutinize with care sales made ’under powers of sale contained in the mortgage; and, where there is great inadequacy of consideration, it will be astute in extracting from the facts of the case sufficient to justify annulling the sale.”
. And in this case the court cited with evident approval the following from O’Donnell v. Lindsey, 39 N. Y. Super. Ct. 523:
*279 . ‘‘It will be seen, however, in' the cases that -a great inadequacy has refined- the ingenuity of the learned judges in extracting from the facts in the case sufficient to justify annulling the sale.” —many authorities being cited in support of the above.. The majority seem to be of the opinion that, .because the mortgagor, by his contract, gave to the mortgagee a power of sale, the proceedings are based upon the mortgagor’s contract, and are largely for his 'benefit, and that no such strictness should! be or is required in these foreclosures as in cases of proceedings by the state ex parte, such as tax proceedings. As stated by this court in Stacy v. Smith, supra, the true rule of law is:
“A court of equity justly scrutinizes the conduct of a party placed by law in a position where he possesses the power to sacrifice the interests of another in a manner which may defy detection, and stands ready to afford relief on very slight evidence of unfair dealing.” ' ■ .
The case of 'Stacy v. Smith was one where a foreclosure •under power of sale was being reviewed; and, while the facts were quite different from those before us, the principles announced are directly applicable thereto. In 27 Cyc; 1466, the rule is laid down that, under a power of sale, “the notice of sale, in all -things required by the statute, miist conform strictly to its provisions.” I am clearly of the opinion that the true rule of law is that, under a power of sale, especially where the mortgagee has the right to be a -bidder, the law liblds him- as a trustee possessed of an important power which he must exercise 'in the utmost good faith, and that the courts will not inquire as to whether actual fraud was committed, but only determine whether there were cir•cumstances which might have deterred bidders, and, if so, when the property has been bid in at a wholly inadequate price by the mortgagee to whom the power of sale was given, that the courts, instead of trying to uphold, the sale, should, as Judge Corson stated, “be astute” in detecting the defect which may-have given the mortgagee an opportunity to bid without competition.
I take it that the majority are of the opinion that a description which would be sufficient in a- 'deed would be sufficient in a •notice of sale — in other words, that," where - the notice is such that it conveys, information from which the property' may be. ascertained it is sufficient even though -defective -or ambiguous. , But
“A description sufficient to convey land between man and man, or which, if contained in an agreement to convey, would authorize a decree of specific performance, might not 'be sufficient in proceedings to sell land on an execution.”
My -Colleagues rest their opinion upon the case of McCardia. v. Billings, supra; but a reading of that case discloses that what was said therein could have no application to the facts of this case. In that case, there was a foreclosure in 1886. After foreclosure sale, the land changed hands several times. No steps, questioning the foreclosure were taken for somewhere in the neighborhood of 115 years; and, so far as the question of the-notice was concerned, the only defect was that it gave -the date of the mortgage as October 1st, when it should have been given as October 10th. There are two classes of defects in notices: One of which, from its nature, could not, except in connection with an examination of the records or of the mortgage, in any way deter or discourage bidding at the sale; another of wjh'ich, being- apparent on the face of the notice itself, would have a tendency to-keep parties from bidding at sales. The notice in the North Dakota case was of the first kind — a person reading such notice-would not discover anything that would in any way tend to prevent his becoming a bidder at the sale. The notice before us is. entirely different — it is of the' second kind, and it presents a situation in principle very similar to that appearing in Jensen v. Andrews, 39 S. D. 104, 163 N. W. 571. I think that any prudent person who should chance to read this notice and should see that-there was a mistake in the description, no matter if he might know, as a matter of fact, that the correct description was lig- and not 109, would say to himself:
“Now, while I know what land was described in that mortgage, as the records fully advise me, and I therefore know what land will be offered for sale, yet I do not know .but what I will be' buying a lawsuit because of such faulty notice. I, therefore, will not become a purchaser at such sale.”
In this case now before us, an equity worth over $3,000 was. purchased for some $90, the only bidder being the mortgagee, the-party holding the power of sale. We should therefore not stop.
