212 N.W. 512 | N.D. | 1927
This is the regular statutory action, to determine adverse claims to real estate. The defendant claims title through the foreclosure of a mortgage executed on the 17th day of November, 1917, on the N.E. 1/4 of sec. 28, twp. 136, R. 72; which mortgage was foreclosed on the 30th day of July, 1923, and sheriff's deed was issued on the 31st day of July, 1924.
It is the contention of the plaintiff that the foreclosure was invalid, *92 and he seeks to have a mortgage executed and delivered to the plaintiff on the 21st day of April, 1922, established as a lien on said premises.
It is conceded that the defendant's foreclosure proceedings are valid, except, that the notice of intention to foreclose was irregular in the matter of service and in substance, and the trial court found as a fact that it was irregular and insufficient, but further found as a conclusion of law that the law requiring notice of intention to foreclose does not apply to mortgages executed before the passage of the law, and that since plaintiff's mortgage was executed before the passage of the law it did not apply to plaintiff's mortgage, and that the foreclosure is valid. Title was quieted in the defendant, and from a judgment entered thereon, the plaintiff appeals.
It was agreed during the trial that the only question involved in the case is, Does the law requiring notice apply to mortgages executed before its passage? It is the contention of the plaintiff that it relates only to the remedy, and therefore applies to the foreclosure of all mortgages, and the defendant claims that the law impairs the obligation of the contract in extending the period of redemption and the time of payment of the debt.
The law requiring notice of intention to foreclose at the time of the foreclosure of the mortgage in the case at bar is chapter 131, Session Laws 1919, as amended by chapter 66, Laws of 1921, and which reads as follows: "Before any action or proceeding shall be commenced to foreclose a mortgage on real property, a written notice describing the land, the date and amount of the mortgage, the sum due for principal, interest and taxes respectively, and stating that if the same be not paid within thirty days from the date of the notice, proceedings will be commenced to foreclose the mortgage, shall be served more than thirty days prior to the commencement of such action or proceedings by registered mail addressed to the title owner according to the records in the register of deeds office at his or their postoffice address as shown by the records in the register of deeds office and if not shown, then addressed to said owner at the postoffice nearest the land. An affidavit of proof of such service of notice shall be filed with the clerk of the court at the time of filing complaint in any action for foreclosure and shall be filed and recorded with the notice and certificate of sale in all other cases. Provided, however, that if said owner shall, before the *93 expiration of thirty days from the service of such notice, perform the conditions or comply with the provisions upon which the default shall have occurred, such mortgage shall be reinstated and shall remain in full force and effect the same as if no default had occurred therein."
This court has construed chapter 131, Session Laws 1919 as amended by chapter 66, Sess. Laws 1921, in the case of Brewer v. Forsberg,
In the case of E.J. Lander Co. v. Deemy,
BIRDZELL, Ch. J., and BURR, NUESSLE, and CHRISTIANSON, JJ., concur. *94