265 N.W. 278 | Minn. | 1936
The action is to annul and set aside a real estate mortgage foreclosure. On January 17, 1929, plaintiff obtained a loan of $23,000 from defendant and gave her promissory note for that amount, secured by a mortgage upon lot 14, block 1, of Russell's Addition to Minneapolis, owned by her and upon which was an apartment *405
building. Because of default in the payment of interest and taxes defendant foreclosed the mortgage by advertisement under the power therein contained and pursuant to the provisions of the statute, the sale being made by the sheriff of Hennepin county on May 17, 1933, defendant bidding in the premises for $26,630.77 and receiving a certificate of sale made and recorded on the same day. There was no redemption; but plaintiff applied for an extension of the time of redemption under L. 1933, c. 339, 3 Mason Minn. St. 1934 Supp. §§ 9633-1 to 9633-21. It was denied, and the order denying the same was affirmed. Young v. Penn Mut. L. Ins. Co.
We do not deem it necessary to discuss all the assignments of error, but shall confine the opinion to those decisive of the appeal, namely, those challenging the validity of the mortgage foreclosure sale and the legal standing of the counterclaim. The first and principal contention of plaintiff is that defendant, a foreign corporation, was not licensed to do business in this state under 2 Mason Minn. St. 1927, §§ 7493-7495), hence could not make a valid foreclosure. The mortgage was lawfully taken when defendant had license to transact business in this state. The mortgage contained a power of sale under which it could be foreclosed by advertisement. This remedy could not be lost by a cancellation of the license or by its expiration before there was occasion to resort to it. The statute authorizing the foreclosure of mortgages by advertisement (2 Mason Minn. St. 1927, § 9603) prescribes three requisites to entitle any party to so foreclose, namely: That a default in the condition of the mortgage has occurred; that no action or proceeding has been instituted or is pending to recover the debt or any part thereof; and that the mortgage has been recorded. There is no requisite that if the holder of the mortgage is a foreign corporation *407
it shall have secured a license to do business in this state. A foreclosure by advertisement is not a proceeding in court or at law where the party instituting the same must show a right to invoke the aid of the court's. It is a proceeding in pais,ex parte, and in rem. Morrison v. Mendenhall,
The foreclosure is also attacked on the ground that the notice stated the amount due was $116.55 in excess of the amount actually due. In the computation of interest, taxes, and insurance where large sums, as here, are involved, a mistake may occur. It seems the attorney who made this computation thought interest was to be paid on interest instalments after due. There is no evidence that the overstatement was for the purpose of wrongfully exacting more than due. This excess, if any, should not vitiate the sale. Nor, of course, should the fact, no doubt also an unintentional *408 mistake, that the defendant bid at the sale $247.19 more than enough to liquidate the actual debt and expenses of foreclosure; for plaintiff was given credit for that sum upon the counterclaim. She suffered no harm, by either mistake.
It is also claimed that the foreclosure was void for noncompliance with the last paragraph of § 9610. It is enough to say that the entire section relates to foreclosures for instalments. The title of the act (L. 1925, c. 280) which incorporated the paragraph into § 9610 so plainly shows.
Another objection urged is that there was another action pending for the recovery of the debt. The claim is ingenious but unsound, namely, that the suit of Young v. Thorpe Bros.
It is claimed that defendants counterclaim for possession of the premises and damages for their detention was not proper. There was no demurrer interposed to the counterclaim, and the objections raised at the trial were not that it was not a proper counterclaim, but plaintiff moved to dismiss "because it is based on an illegal proceeding, foreclosure of a mortgage, on no right of action." It is plain that the ground was without merit, being based on a claimed illegal foreclosure which in fact was a valid foreclosure.
We must now take as settled the accounting had in Young v. Thorpe Bros.
There is nothing in the assignment of the rents by Young to Thorpe Bros. that gave any occasion to contend that thereby the validity of the mortgage was affected, nor is there anything in the record to sustain the contention that it was tainted with usury. It is only the validity of its foreclosure that is assailed by the complaint. As far as the findings of fact call for the conclusions of law, they are sustained by the evidence. Insofar as the amended findings requested conflict with those made, they are not supported to such extent as to compel the court so to find. Many findings made and many requested are immaterial and do not control or bear upon the decision herein. We discover no error in the record that could have prejudiced plaintiff.
The order is affirmed.
DEVANEY, CHIEF JUSTICE, and STONE, JUSTICE, took no part in the consideration or decision of this case.