41 F. 455 | U.S. Circuit Court for the District of Minnesota | 1889
Suit is brought to sot aside a quitclaim deed, executed and delivered by the complainant, J. Allison Smith, to John Groen et ol., June 15, 1886, on tho ground of fraudulent representations, (which complainant believed were true and relied upon,) made by said Green and the other defendants acting for him and on his behalf. The land convoyed is described as lot No. 4 of the S. W. { of section 28, township 29, range 24, located and situated in Hennepin county, in the state of Minnesota. Testimony is taken in regard to the alleged fraud, but, in the view taken, the conclusion of law, entitling the defendants to a decree dismissing the bill, upon the stipulation that the following facts are true, renders it unnecessary to consider that question. The determination of the suit rests upon the validity of a foreclosure by advertisement of a mortgage, and the questions presented are: (1) Is an instrument in the form of a mortgage, which describes the land accurately, according to the survey of the government of the United States, and from that description it appears the land is located in Hennepin county, in the territory (now state) of Minnesota, hut not so declared in the instrument, such a mortgage as can he foreclosed by advertisement and sold according to the laws of the territory (now state) of Minnesota, and by such sale does a legal title become vested in the purchaser? (2) Has such mortgage been duly and legally foreclosed, so as to bar the equity of redemption, and vest a title before the execution and delivery of the quitclaim deed from Smith to Green?
The following are "the facts: On April 22, 1857, John Green, one of the defendants, was the owner in fee of the following land: Lot No. 4 of the S. W. k of section 28, township 29, range 24, according to the survey of the United States government, and containing 67.25 acres, lo-’ eated in tho county of Hennepin and territory (now state) of Minnesota. On that day Green sold and conveyed the land to Snyder, McFarlane, and Cook, taking a mortgage on the land as security for the deferred payment of $2,914.10, part of the purchase money. This mortgage failed
CONCLUSIONS OF LAW.
A court takes judicial notice of the government surveys and legal subdivisions, and when land is so conveyed, though the county and state are not named, yet, if the parties reside in the state, the court will presume the land is situated there. The land is described with sufficient certainty, and the mortgage could be foreclosed by advertisement.. Bur
2. The ordinary rule applies that the salo and right of redemption under the power given in the mortgage contract is governed by the law in force at the time the mortgage is made, and not at the time of the foreclosure, and so all the rights of the parties after such foreclosure sale must be determined. No notice of sale under a foreclosure by advertisement, by virtue of the power contained in the mortgage, was required to be filed in the office of the register of deeds 'by law to bar redemption, when this mortgage was made. See Comp. St. Minn. 646. The power itself or the statute did not require it; only a published notice was necessary, and when that was made it is all that any one interested in the land was entitled to. Where personal service upon the mortgagor and others of the notice of salo is required by law, or constructive notice by filing a copy of the published notice in the office of the register of deeds, a sale without such notice does not bar redemption; but if the statutory provisions in force at the time the mortgage is made, including those relating to notice of the sale or the conduct of it, are strictly followed, it is all that is necessary. This law, not the court, fixes and establishes the conditions and-extent of the power, and the rights which pass to a purchaser when the power is executed. No subsequent law can impose additional burdens upon such rights, and require something else to be done after sale than was necessary or contemplated. The law' in force when this mortgage was made fixed the time of redemption from sales made under foreclosure by advertisement “to tw'elve months after such sale.” Id. p. 645, § 11. The act of July 29.1858, provided “that the original debtor, his heirs or assigns, shall have the period of one year for the redemption, upon each and every sale foreclosure, * * * after the same shall have been made, and notice thereof filed in the office of the register of deeds in the county where such real estate shall be situated;” and the act of 1860, amending the act of 1858, extends the time of redemption to three years after sale and notice thereof, as aforesaid. To apply either of these acts to the foreclosure and sale by advertisement of this mortgage would annex a condition to the power of sale which did not exist, and in so doing a court would be making a contract for the parties, instead of enforcing the one made by themselves. 2 Jones, Mortg. (4th Ed.) § 1821, to and including section 1827; Hillebert v. Porter, 28 Minn. 499, 11 N. W. Rep. 84; Carroll v. Rossiter, 10 Minn. 174, (Gil. 141.) The time for redemption certainly expired when the deed executed April 12, 1862, in pursuance of section 12, p. 645, Comp. St. Minn., was recorded. Smith’s right of redemption w'as then barred, and he had no interest in the property at the time the quitclaim deed from him was obtained. Thompson v. Foster, 21 Minn. 319, cited by complainant’s counsel, relates to foreclosures by action, and has no application to the facts in this case. Decree will be entered dismissing the bill of complaint.