212 N.W. 816 | Minn. | 1927
Plaintiff was the mortgagor and defendant the mortgagee under the mortgage in question. It covered certain lots in the platted portion of Moorhead, part of them being described as "lots one (1) to seven (7) inclusive" in a specified block. In the foreclosure notice and record, through the mistake of defendant's attorney, this description was made to read "lots one (1) and seven (7) inclusive" of the same block. The use of "inclusive" as a part of the mistaken description introduced an element of patent ambiguity indicating the possibility of mistake even to one who was not familiar with the situation as plaintiff was. He knew, apparently all through the foreclosure proceedings, that a mistake was being made of which he might get a substantial advantage. His purpose in this action was to secure that advantage by having the omitted lots freed from any cloud by reason of the mortgage and its foreclosure. These lots include the homestead of plaintiff, the dwelling and other improvements giving them a value considerably larger than that of the rest of the property.
In that situation the decision below went for defendant upon the authority of Peterson v. First Nat. Bank of Ceylon,
While the writer is heartily in accord with the idea that equity can relieve in a proper case even against unilateral mistake, he feels that in this case defendant's proof failed to show in him sufficient equity to justify relief. It is probably a case where the facts actually warranted the result, the deficiency being possibly a somewhat technical one of proof. The point is that defendant did not show that the premises actually sold in the foreclosure were not of sufficient actual value to repay him the mortgage debt with costs. If perchance that was the case, defendant certainly is not entitled to the relief granted. Adoption of that view would lead to a new trial. But a majority of the court is of the opinion that the order appealed from should be affirmed.
So ordered. *441