Menard v. Crowe

20 Minn. 448 | Minn. | 1874

By the Court.

Berry, J.

The plaintiffs made several objections to the evidence of foreclosure upon which defendants rely, to establish their claim to the land in controversy in this action.

I. It is objected that the notice of sale does not name the mortgagee. The notice describes the mortgage, as having been “ made, executed and delivered * * * to Isaac Crowe, agent of Abraham Becker.” This is a designation of Crowe, as the mortgagee, i. e., the person to whom the mortgage runs. That he is also styled, “ agent,” &c., is not inconsistent with, nor does it take away, his character as mortgagee.

It is further said that the notice is not signed by Isaac Crowe, as the mortgagee, and that it is signed by Abraham Becker, who is no party to the mortgage. The notice is signed, “ Isaac Crowe, agent for Abraham Becker. Abrabam Becker, mortgagee in fact.” The statute being silent upon the subject of signature, and Crowe being designated mortgagee in the body of the notice, the simple signature, “Isaac Crowe,” is sufficient. It shows that the notice is given by the proper person, i. e., the mortgagee. The addition, “ agent,” etc., is of no more importance than before, while the other signature and addition do not at all affect the fact, appearing from the mortgage and the notice, that Crowe is the mortgagee.

Another objection taken is, that the amount claimed in the notice to be due upon the mortgage, is $759 90-100, while in truth the amount due did not exceed $600. The amount claimed being within the literal terms of the note secured by tbe mortgage, and no injury or fraud appearing, this objection is answered by Butterfield vs. Farnham, 19 Minn. 85, and cases cited.

The last objection to the notice of sale is, that although it appoints the 7th day of November, 1859, as the day of sale, it appoints no hour at which the sale is to take place. The statute, (Pub. Stat. chap. 75, secs. 5 and 6,) requires that the notice should specify “ the time and place of sale,” and that the sale should be at public vendue, between the hours of nine o’clock in the forenoon and the setting of the sun. Unquestionably, the best practice would require that the hour, as well as the day of sale, should be named in the notice. But the question-in this case is, not what is the best practice, but whether this sale is invalid.

In view of the statutory requirement as to the part of the day during which a sale must take place, to name the 7th day of November, 1859, as the day of sale, is equivalent to saying that the sale will take place on that day, between nine o’clock in the forenoon and the setting of the sun. It cannot be said that such a notice does not “ specify tbe time” of sale, and apprise tbe mortgagor and tbe public thereof. It can only be said that it does not specify the time with as much particularity as it ought to do, by designating tbe hour of sale, according to common usage and the better practice. The indefiniteness of the notice was then, at most, an irregularity; and whatever the mortgagor might have done, upon seasonable application, such irregularity cannot be permitted to overthrow a sale, which so far as appears, has never been attacked until the present action was instituted — nearly twelve years after the sale took place. Hamilton vs. Lubukee, 51 Ill. 415 ; Butterfield vs. Farnham, 19 Minn. 92, and cases cited.

II. The affidavit of publication of notice is also objected to. As to this objection it is only necessary to say, that as the evidence in the case is not returned here, and as the court below has expressly found that the notice “ was published for six.successive weeks as required by the statute,” it will be presumed that if the affidavit were insufficient, other and sufficient evidence to establish a proper publication, was introduced upon the trial.

If this were not the fact, we are of opinion that the objection that the affidavit is made by a person who swears that he is the publisher, but does not swear that he is the printer of the newspaper in which the notice appeared, is not well taken in this case. Ordinarily, and therefore presumably, the publisher of a paper is the printer, in the sense of being the person for whom, as principal, and by whose servants, the paper is printed. So that, without going as far as Bunce vs. Reed, 16 Barbour, 347, where it is held that publisher and printer are synonyms, it would be enough for this case to say, that the ordinary presumption that the publisher of the paper is the printer, in the sense above, is not overcome by any showing to the contrary. See also Sharp vs. Daugney, 33 Cal. 513.

The other objections taken to the evidence of foreclosure, were hardly insisted on, and require no special consideration.

Judgment affirmed.