Paquin v. Braley
10 Minn. 379
Minn.
1865
Check Treatment

By the Court —

Wilson, C. J.

— Norbert Paquin being the owner of the following described premises mortgaged to the defendant, (1), the s. w. quarter of s. w. quarter, sec. 29, T. 110, R. 20; *381(2), s. half of s. e. quarter, see. 19, and s. e. quarter of sec. 23.

Subsequently in August, 1858, he conveyed to J. Lloyd Breck and D. P. Sanford, 2^ acres lying in a square form in the n. e. corner of said s. w. quarter of s. w. quarter of sec. 29, and in March, 1859, he conveyed the whole of said mortgaged premises (except said 2-J acres,) to the plaintiff.

In August, 1859, the defendant in pursuance of the power of sale contained in said mortgages, advertised the premises for sale and in September, 1859, sold them as follows :

At the mortgagee’s sale the Sheriff who acted as the agent of defendant in making the sale, first offered the premises described in the second mortgage aforesaid, and the defendant bid them in for the sum.of $500, that being the highest sum bid therefor.

The Sheriff next offered as one lot or tract the premises described in the first mortgage, (s. w. quarter of s. w. quarter of sec. 29,) which the defendant also bid off — the Sheriff and defendant at the time of sale knowing that Breck and Sanford were the owners of 2-|- acres of the tract.

After this the Sheriff re-offered the premises first sold, and they were bid off by the defendant for the sum of $542.26. This sale was fifteen or twenty minutes after the first sale of the same premises.

On the facts two questions are presented to the Court: First, whether it was error in the defendant to offer and sell the premises described in the first mortgage as one tract or lot ?

Second, whether the Sheriff had any power to re-offer or resell the premises described in the second mortgage ?

As to the first question it will be observed that it is not whether Breck and Sanford or the plaintiff could in a court of equity have compelled the defendant to sell in the subdivision existing at the time of sale. Breck and Sanford here ask for no relief, and the plaintiff does not show that the course pursued was inequitable or prejudicial to his rights. It is simply a legal question whether the sale of said 40 acre tract in one parcel Avas in contravention of the statute and therefore void.

The Court are unanimously of the opinion that there was no *382error in the course pursued in the sale of that tract. The majority of Court consider that the mere sale to Breck and Sanford did not make said 2}¿ acres a “distinct tract or lof within the meaning of the statute. I think that where lands mortgaged as one tract or lot, are subsequently cut up into lots, the mortgagee upon a foreclosure of the moi’tgage under the statute is not bound to advertise or sell in parcels unless so ordered by a court of equity, and. on this ground I concur with my bx'ethren ixx the opinion that there was no error in the sale of this tract.

As to the second question presented we are clearly of the opinion that the poAver of the Sheriff (or defendant,) to sell was exhausted by ihojw'st sale.

The duties of the Sheriff in making the sale were merely ministerial. He had no right to disregard or power to set aside a prior sale. The second sale was thex’efore a nullity.

The cause is remanded to the. Court below with instnxctions to modify its judgment in accordance with this opinion.