30 Minn. 537 | Minn. | 1883
The action is under the statute to determine adverse claims to real estate. The only controversy here is between plaintiff and the defendant Caroline L. Baldwin. So far as affects their adverse claims, the facts are: July 10, 1874, one Bell owned the real estate, and on that day conveyed it to Bufus J. Baldwin, husband of Caroline L., for the consideration of $4,400. Of this, $1,466.67 was paid by a credit of that amount upon the price of real estate about the same time conveyed by said Bufus J. to Bell, and the remainder of said $4,400 was secured by a mortgage executed by Bufus J. to Bell, upon the land so conveyed to Bufus J. The land so conveyed by Bufus J. to Bell was bought by the former with money which he held as trastee of said Caroline L., he taking the title to the land in his own name, without her actual knowledge. October 5, 1874, Bell assigned the mortgage to Bovey, and the assignment was duly recorded October 30, 1874. June 20,1879, Bovey attempted to foreclose the mortgage under the power of sale contained in it, and at the sale became the purchaser. The defects alleged against this attempt to foreclose are in the notice of sale; that it did not state when the mortgage was recorded, but, instead, contained this clause: “When and where recorded: In the office of the register of deeds of Hennepin county, in the state of Minnesota, in Book 30 of Mortgages, on page 152;” and that it was not signed by the mortgagee or as-signee, but by the attorney for the assignee, as follows: “Geo. H. Spry, Attorney for said Assignee.” March 22, 1881, Bovey, being advised that his foreclosure was defective, proceeded again to foreclose. The sale was had May 14, 1881, and he became the purchaser. Assuming the former attempt to foreclose to have been ineffectual, the second was in all respects regular. April 22,1878, one Bafter recovered judgment in the district court against Bufus J. Baldwin for $2,254.57, which was on the same day duly docketed in the county of Hennepin, where the real estate is situated. On March 8, 1882, E. C. Whitney, by assignments duly executed and filed in the office of the clerk of the district court, became the owner of this judgment. May 13,1882, he duly filed notice of his intention to redeem
The first point made by defendant against Whitney’s redemption is that the first foreclosure exhausted the power of sale, so that the second foreclosure, from which he redeemed, was void. But the first foreclosure was void by reason of the notice of sale not stating the time when the mortgage was recorded. In foreclosing under the power of sale, what the statute requires must be substantially complied with. The statute requires the notice to specify “* * * the date of the mortgage and when recorded.” Gen. St. 1878, c. 81, § 6. The purpose of this requirement is manifest. It is that persons interested in the property may have notice whether their interests are to be affected by the foreclosure, so that they may take action accordingly. The notice must contain this information. It is not enough that, by reference to the book and page where recorded, it furnishes the means of ascertaining. The statute does not make that an equivalent to the information it requires the notice to give. All of the cases cited by the defendant go on the theory that the notice must in all essential particulars conform to the statute. In the case of Menard v. Crowe, 20 Minn. 402, (448,) a time of sale, and in Golcher v. Brisbin, Id. 407, (453,) a place of sale, was specified in the notice, and the only question in each ease was whether it was stated with sufficient definiteness; but in both it was assumed that the notice would not have been good, had it omitted to specify a time or place. That the notice was subscribed as it was, does not, we think, affect its sufficiency.
The second point of defendant is that, under the circumstances of the purchase of the property by Rufus J. Baldwin, there was a resulting trust in it in favor of defendant, and that, therefore, Rufus J. Baldwin had no interest in the land upon which a judgment against him could be a lien, and consequently no right of redemption could exist on such a judgment.
The only question remaining is, was the plaintiff, or Whitney, from whom he claims, a purchaser for a valuable consideration? Irrespective of the statute giving a docketed judgment precedence over an unrecorded deed, a mere judgment creditor is not, as such, a purchaser for a valuable consideration. Jackson v. Dubois, 4 John. 216. But a purchaser paying his money on a sale under execution upon the judgment is. Jackson v. Chamberlain, 8 Wend. 620. A redemp-tioner paying his money upon a redemption from such a sale must stand in as good a position! He is, in effect, a purchaser under the execution sale, and must be deemed a purchaser for a valuable consideration. The legal title of the judgment under which Whitney redeemed, and consequently the legal right to redeem, was in him. That he had an arrangement with plaintiff by which the latter was to have the benefit of the redemption which the plaintiff could have only through a subsequent conveyance from Whitney, was a matter that does not concern the defendant. It did not affect the legal right to redeem.
Judgment affirmed.
