32 Minn. 205 | Minn. | 1884
One Edwards executed to one Austin a mortgage upon lands situated partly in McLeod county and partly in Renville county. The mortgage was duly recorded in the latter county, and was also recorded in McLeod county, except that the description of the land situated in Renville county was wholly omitted from the record. Default having been made in the conditions of the mortgage, Austin foreclosed by advertisement under a power of sale, the notice of sale being published, and the sale being made, in McLeod county. At this sale the lands in both counties were sold, in separate parcels, to the defendant. The time of redemption having expired, and the land in Renville (which is the land in controversy) not having been redeemed, defendant now claims title under the foreclosure. Plaintiff claims title through a conveyance from Edwards, executed subsequent to the mortgage to Austin.
1. The question in the case is the validity of this foreclosure, and this in turn depends upon the sufficiency of the record of the mortgage in McLeod county as a basis for advertising and selling, in that county, the lands situated in Renville county. The provisions of statute bearing upon this question are as follows: Gen. St. 1878, c. 81, § 2, enumerates, as one of the requisites to the right to foreclose under a power of sale, that the mortgage containing the power has been duly recorded. Section 5 of the same chapter provides that notice of sale shall be given by publishing the same in a newspaper printed and published in the county where the premises intended to be sold, or some part thereof, are situated. Section 7 provides that the sale shall be in the county in which the premises to be sold, or some part thereof, are situated. It would seem to follow that, in order to foreclose and sell in one county mortgaged premises situated in two counties, the mortgage should be recorded in both.
We have no doubt that the record in the present case, in McLeod
2. This was, in form, an action under the statute to determine an adverse claim to real estate, the real object of it being to test the validity of this foreclosure sale. Gen. St. 1878, c. 75, § 25, provides that in such an action the defendant may, in his answer, set out the amount for which the land was bid off at the sale, and that the plaintiff shall not be entitled to have judgment for the relief demanded until he shall first pay or deposit in court the amount for which the lands were bid off, with interest from the day of sale. This does not require that such payment or deposit shall be made before the action is brought. It is no part of the cause of action. It is simply a condition precedent to the entry of judgment. Therefore the tender and ■deposit made in this case on the trial was seasonably made.
Judgment affirmed.
Dickinson, J., 'because of illness, took no part in this decision.