Blake v. McKusick

[341] By the Court. Flandeatt, J. It appears from the pleadings in this case that the Defendant gave the Plaintiff a mortgage on lands in Washington county, to secure a debt. That the Plaintiff, or some one acting for him, procured a foreclosure of the mortgage to be made by advertisement in a newspaper, and at the sale purchased the land in the name of the Plaintiff, had all the affidavits made out and recorded, and put the Plaintiff into possession of the land. That the Plaintiff has rented portions of the same and received the rents therefor. The sale took place on the 20th day of November, 1860. The time for redemption expired without the land being redeemed. The Plaintiff has discovered that some irregularity took place-in an adjournment that was made on the first day that was set for the sale, and that the person who foreclosed the mortgage and purchased the land for him, had no authority to do so. He now seeks to set aside the foreclosure and sale on these grounds, and have a re-sale, under a decree of the District Court. The Defendant claims that the Plaintiff has by his acts ratified the proceedings of the party who assumed to act for him, and alleges that the land was worth, at the time of the sale, all it was bid in for, but would not now bring more than half that amount. He waives all irregularities in the proceedings of -foreclosure, and tenders a release and quit claim of all his interest in the land. We think there is very little doubt that the Plaintiff’s acts in taking possession of the land and renting it out to tenants, is a complete ratification of the act of his attorney in purchasing it in for him, even if he had no authority in the first instance. If he discovered any defect in the foreclosure which would endanger his title, he had the undoubted right to seek the aid of the Court to have it corrected, by either ordering a re-sale, or making the Defendant waive the error on the record. The Plaintiff has no one to fear except the Defendant and those claiming under him; strangers cannot interfere and raise such questions. Baldwin vs. Allison, 4 M. R., 25. Wilson vs. Troup, 2 Cow., 238-9. The Court was right in dismissing the complaint upon the Defendant’s filing a release of his interest. This- was all that the Plaintiff could, in rea [342] son, ask. . The Courts wil not tolerate anything that savors of speculating upon errors of a party’s own commission. . The order for judgment on the pleadings is affirmed.