90 Minn. 24 | Minn. | 1903
This is an action to establish an alleged sale of land to plaintiff on the foreclosure of a mortgage by advertisement, and to compel the sheriff to issue to her a certificate of such sale, and also to have an alleged foreclosure sale of the land to the- defendant adjudged void, and the certificate and record thereof, and the lien of the mortgage, cancelled. The trial court made its findings of fact, and as conclusions of law directed judgment to the effect that neither of the parties acquired any right, title, lien, or interest in pr to the land by the alleged sales, or either of them; and, further, that the lien of the defendant’s mortgage was not affected by "either sale, and that it still had the right to foreclose the mortgage by virtue of the power of sale therein. Judgment was so entered, from which both parties appealed.
The questions raised by the cross-appeals are practically the same, and will be considered together. The facts found by the court are substantially these: On May 2, 1898, the plaintiff was the owner of lots 8 and 9, in block 2, of Terrace Park addition to St. Paul, lot 9 being her .homestead. On that day she and her husband, to secure the payment of $14,000 borrowed by her from the defendant, duly executed to it a mortgage on the lots, which contained the usual power of sale, and was duly recorded. She made default in the payment of interest and taxes, which she was required to pay by the conditions of the mortgage, and thereupon the defendant initiated proceedings for the foreclosure of the mortgage by advertisement. To this end it caused a notice of foreclosure sale in the usual form to be published and served, in which it was stated that the lots would be sold by the sheriff on June 30, 1902, at ten o’clock a. m., at the main entrance to the court house, on the Cedar street side thereof.
On the day of the sale, and prior thereto, .the plaintiff authorized her husband, Edward Simonton, who is an attorney at law, to attend the . sale and protect her interests, but he did not have any money for purchasing the property or any part thereof at the sale. He appeared at
When the premises were so offered for sale and struck off to defendant, there was no one present except the deputy and the attorney, and no other bids were made or received. In a few minutes thereafter Mr. Simonton returned and tendered to the deputy sheriff the several •sums so by him bid as plaintiff's agent for the premises, and demanded that the deputy execute and deliver to the plaintiff the usual sheriff's certificate and other evidence of sale, which was- refused by the deputy. The plaintiff has kept the tender good, and has brought the -amount thereof into court for the benefit of the defendant. The usual certificate and proofs of sale were made by the deputy sheriff and delivered to the defendant, which were duly recorded. ’ The lots at the time of the sale were worth all ■ and more than the bid therefor by the defendant. The amount bid therefor by the plaintiff was grossly inadequate — a mere nominal sum in comparison with the actual value of the lots. Do these facts sustain the conclusions of law and the judgment of the district court? This is the principal question for our ■consideration.
To permit the sheriff, upon the request of the mortgagor or on his-own motion, to sell the mortgaged premises in the absence of the mortgagee, simply because the latter had given notice that at a given time and place the mortgage would be foreclosed by a sale of the mortgaged premises to be made by the sheriff, would lead to most serious consequences to the interests of the mortgagee. It is not necessary to look beyond the facts of this case for an illustration of the injustice which might be perpetrated under the forms of law if the mortgagor had a. right to direct the sheriff to sell, and have the mortgaged premises sold, in the absence of the mortgagee. It is true chat the sheriff is-not the agent of either of the parties in making the sale, but the agent of the law to secure a fair sale. His power and duty in the premises,, however, do not begin until he is called upon to' officiate at the sale by the mortgagee. The mere fact that the mortgagee publishes and serves-a notice of foreclosure is not such a request or direction. The claim of the'plaintiff to the contrary, in its last analysis, is simply, that the mortgagor may foreclose the mortgage by advertisement on his own terms, in the absence of the mortgagee and without his consent. ■
Prior to 1866 sales on the foreclosure ■ of real estate mortgages by advertisement could be made either by the person appointed for that purpose in the mortgage or by the sheriff, and in either case the mortgagee was authorized to purchase at the sale. R. S. 1831, c. 85, §§ 6, 9. This led to abuses, for in practice a party selected by the mortgagee, or the mortgagee himself, was named in the mortgage as such person. The object of the amendment made by G. S. 1866, c. 81, § 7,. was to prevent such abuses by providing that such sales must be-conducted by a disinterested party — the sheriff. It is apparent from this history of the present statute that it was not intended thereby to* invest the sheriff with the powers of a trustee for the enforcement of the mortgagb security, or to give him any authority to execute the-power by a sale of the mortgaged premises on his own motion or that of the mortgagor. . ■
The case of Paquin v. Braley, io Minn. 304 (379), is not here in point, for the facts in that case were the reverse of the facts in' this case. The mortgagee in that case, on a foreclosure of his mortgage by advertisement, bid at the sale $500 for one tract of the mortgaged premises, and it was sold by the sheriff conducting the sale to him for that sum, and the sale closed. Fifteen to' twenty minutes thereafter the sheriff, at his request, again offered the saipe tract for sale, and he bid therefor $542.26, and it was sold to him for the amount of his bid. The court correctly held that the power of the sheriff to sell was exhausted by the first sale; hence the second one was a nullity.
The plaintiff also urges, in effect, that the sale to defendant ought not to be sustained, even if it be held that the attempted sale to the plaintiff was unauthorized, for the reason that it was not completed until ten minutes after eleven o’clock, and after the agent of the mortgagor
The objection that the second sale was not made until after the agent and bidders had left the place of sale remains to be considered. It may be conceded that where mortgaged premises are in form offered for sale and sold by the sheriff at a foreclosure sale, and the mortgagor and bidders then depart, and the premises are again offered for sale and sold, such sale will be set aside at the suit of the mortgagor, although the first sale was unauthorized, unless it conclusively appears that he has not been prejudiced thereby. That the plaintiff was not and could not have been prejudiced in any manner by the sale of the lots to' the defendant conclusively appears from the record. From, first to last there were present at the place of sale only the sheriff, the plaintiff’s agent, and the defendant’s attorney. There were no.bidders who dispersed before the second sale was made, or who were deterred from bidding. Any irregularities in the conduct of the sale were due to the unjustifiable attempt of the plaintiff’s agent to deprive the defendant of its security. It is true that he left the place of sale before the lots were offered for sale the second time, but he was notified of the fact, and afforded a reasonable opportunity to be present and bid if he so- desired. It is also1 true that the sale tO’ the defendant was fairly and in gQod faith made, and that the lots brought the full amount due on the mortgage. We hold, then, upon the undisputed facts of this case, that the sale of the lots to the defendant was valid, and that the attempted sale thereof to the plaintiff was invalid.
' Judgment modified.