Moore v. Carlson
128 N.W. 578
Minn.
1910
Check Treatment

Lead Opinion

Jaggard, J.

Plаintiff and appellant brought this action to determine advеrse claims. ‍‌‌​‌‌‌​​​‌‌​‌​​​​‌‌​​​​​​‌​‌‌‌​​‌​​​​​​​​‌‌​​​​​‍Defendant and respondent Carlson asserted title through a *434foreclosure by advertisement, inasmuch as рlaintiff had failed to redeem from the foreclosure sаle within the year. Plaintiff replied, and alleged that the mortgаge given by him to defendant Carlson was assigned to one Cress, who reassigned it to defendant ‍‌‌​‌‌‌​​​‌‌​‌​​​​‌‌​​​​​​‌​‌‌‌​​‌​​​​​​​​‌‌​​​​​‍Carlson, and that both assignments were recorded, but were not mentioned nor referred to in the notice of sale to foreclose said mortgagе. Defendant Carlson demurred to the reply. The court sustainеd the demurrer. This appeal was taken from that order.

The controversy turns upon this part of section 4460, R. L. 1905: “Each notiсe shall specify: (1) The name of -the morgtagor and of the mortgagee and of the assignee of the mortgage, if any. ‍‌‌​‌‌‌​​​‌‌​‌​​​​‌‌​​​​​​‌​‌‌‌​​‌​​​​​​​​‌‌​​​​​‍* * *” The respondent insists that the purpose of the statute is to “satisfactorily establish and show the right of the party who is proceeding under it to invoke its aid. Backus v. Burke, 48 Minn. 260-269,” 51 N. W. 284, 286. It would have servеd no useful purpose to have inserted in the notice thе name of the assignee to whom the ‍‌‌​‌‌‌​​​‌‌​‌​​​​‌‌​​​​​​‌​‌‌‌​​‌​​​​​​​​‌‌​​​​​‍mortgagee transferred the mortgage and by whom that mortgage was in turn assigned to the mortgagee himself.

This view of the construction of the statute we are not able to accept. Foreclosure by advertisement is purely a statutory creation. One who avails himself of its provisions must show an exact and literal compliance with its terms; otherwise he is bound to profess withоut authority ‍‌‌​‌‌‌​​​‌‌​‌​​​​‌‌​​​​​​‌​‌‌‌​​‌​​​​​​​​‌‌​​​​​‍of law. If what he does failed to comply with the requirements of the statute, it is void. While the same strictness as in advеrse tax proceedings is not required, the analogy is suggestivе. It is elementary that the construction must be favorable tо persons seeking to redeem.

It is true that the language uses the word “assignee” in the singular number; but it is equally true that such a term may be construed to mean more than one person. Sеction 5513, subd. 2, B. L. 1905. See Selborne, J., in Conelly v. Steer, 7 Q. B. D. 520. To name the various assignees is not without value to the mortgagor, lie is entitled to know the history of the transaction, and to consider in connection with his action the various assignments which affect the title of the person seeking to foreclose by advertisement. It follows that the demurrer should have been overruled.

*435In the syllabus to Hathorn v. Butler, 73 Minn. 15, 75 N. W. 743, it was said: “In the notice the name of each assignee shall he specified.” That syllabus was written by the court, and received the sanction of the court. Irrespectivе of whether it was made necessary by the opinion, we rеgard it as sound law.

Reversed.





Dissenting Opinion

Brown, J.

(dissenting).

I dissent. Carlson was the mortgagee. He assigned the mortgage to Cress, and Cress reassigned to Carlson. Carlson foreclosed as mortgagee,. without referring to the assignments in the notice of foreclosure. In my opinion, a reference to the assignments in the notice of foreclosure would serve no useful purpose whatever, and was therefore unnecessary. No claim is made that the mortgagor had any equities against the assignee Cress.