Thorp v. Merrill

21 Minn. 336 | Minn. | 1875

Berry, J.¹

1. In the mortgage from Hunter to Smith, the mortgaged premises are described as “ the west half of the southeast quarter of section fourteen,” etc. In the record attempted to be made of the mortgage in the registry of deeds, the mortgaged premises are described as “the west half of the northeast quarter of section fourteen,” etc. The effect of the error in the record is that the mortgage is not recorded; and as to entitle any party to foreclose a mortgage by advertisement it is “ requisite ” that the same should have been “ duly recorded,” (Gen. Stat., ch. 81, §§ 1, 2,) it follows that the attempted foreclosure under which the plaintiff claims title, is invalid and wholly ineffectual, the mortgage sought to be foreclosed not having been so recorded. Ross v. Worthington, 11 Minn. 438, 443 ; Morrison v. Mendenhall, 18 Minn. 232, 236, 241. We do not at all assent to the doctrine of the authorities cited by counsel for plaintiff, to the effect that the statute, in requiring a mortgage to be recorded before foreclosure by advertisement, has in mind the protection and benefit of the purchaser at the foreclosure sale only. The requirement is for the benefit of all parties interested, and, among others, of the mortgagor and those who claim under him. That the record should correctly show the authority of the mortgagee or his assigns to sell, is important to the mortgagor, because it is for his interest that'the title should be as marketable as it may be, since he may be liable for a deficiency: and it is important to the mortgagor, or those claiming under him, because they may be entitled to a surplus.

2. Upon the back of the mortgage ivas the usual certificate of the register of deeds, stating that the mortgage was filed for record on a day named, and “was duly recorded in book F,” etc. The plaintiff’s counsel contends that this certificate is to be regarded as conclusive upon the point of a valid record at the date of the certificate, under § 1, ch. 53, Laws 1870, which provides “ that it shall be the duty of every register of deeds to endorse upon every instrument recorded by him, over his official signature, the time when it was received, and the book and page in which it was recorded ; and eveiy instrument shall be considered as recorded at the time so noted.” It may well be doubted whether this provision of the statute has any application to •an instrument which is so mis-recorded as to be, in effect, not recorded at all, as is the case with the mortgage here in question. But however this may be, our opinion is that the provision goes no farther, at most, than to make the certificate, either with or without (it is unnecessary now to decide which) the entry after the record, provided for in § 155, ch. 8, Gren. Stat., conclusive as to the time of the receipt and record of an instrument recorded.

Judgment, affirmed.

1 Cornell, J., having been of counsel, did not sit in this case.