Pinney v. Fridley

By the Court Flandrau, J. The action is for the recovery of the possession of real estate. The complaint is framed under the forcible entry and detainer act, (Comp. Sts., ch. 77,) for holding oAmr after sale under a mortgage foreclosure by advertisement. The pleader has undertaken to set out all the chain of facts by which, the title Avas transferred from the Defendant to the Plaintiff, and through AAdiich the Plaintiff has become entitled to the possession which he claims in this action. The principal difficulty we encounter in determining upon the sufficiency of this complaint is, Atdiether it contains too-much or too little. Had the pleader simply alleged title and right of jjossession in himself, and a AVrongful Avithholding of the possession from him by the Defendant, his cause of action Avould have been well stated in ejectment, as we have frequently held, and would have entitled him to a. judgment for the recoA'ery of the possession. But he has done [37] more than this. He has alleged title in the Defendant on a certain day. Then a mortgage to the Plaintiff, which is described with considerable particularity as to covenants, &c. Then the happening of a default in the condition of the mortgage, and a foreclosure of the same by advertisement under the statute, each step of which foreclosure is particularly set out up to the day of sale, when it is alleged, “ That on the said 23d day of September, 1861, the said mortgage was duly foreclosed by' a sale at public auction,” &c. Also, purchase at such sale by the Plaintiff, and a full history of the perfection of his title under the purchase by the execution and recording of the proper papers. Also, an allegation ^hat the time for redemption has expired. Then follows this allegation: “ That under and by virtue of said mortgage and foreclosure thereof, as aforesaid, this Plaintiff is seized in fee simple of the said premises, mortgaged as aforesaid, and every part and parcel thereof, and has lawful title thereto, and is entitled to the immediate possession thereof.” This is followed by sufficient allegations of wrongful detention by the Defendant, demand, refusal, &c. It will be seen that the pleader, in the first place, shows the Defendant to be the owner in fee of- the lands. There was no necessity for this, as he might have at once alleged that the Plaintiff was the ow^er in fee, but having done it, he imposes upon himself the task of showing the title out of the Defendant and into himself. He alleges a mortgage which, he says, “ contained full covenants and warranty,” and describes the nature of the condition, &c. On the principle that a pleading must be taken most strongly against the pleader, are we not bound to presume that if this mortgage contained a power of sale the pleader would have stated it. The whole of Ms subsequent allegations of foreclosure by advertisement depended entirely upon the existence of such a power. He has omitted to allege any power of sale, which being the only foundation upon which he coidd foreclose by advertisement, all the subsequent allegations of such foreclosure fall to the ground, unless they are saved by some other part of the pleading. In respect to this, the Plaintiff contends that the allegation above [38] quoted, “That on the said 23d.day of September, 1861, the said mortgage Avas duly foreclosed by a sale at public auction,” &c.T supplies all deficiencies by force of the words “ duly foreclosed,” Avhich he insists comprehend the Avhole question, and involA'é poAver to foreclose, and regularity in the foreclosure proceedings. Noav there are two answers to this position. First. — If the pleader had merely stated the execution of the mortgage, and that it was “ duly foreclosed,” the allegation Avould have been sufficient, and involved all that the Plaintiff iioav claims for it, precisely as a simple allegation that the Plaintiff Avas the OAvner in fee of the land, would have ansAvered the same purpose as a long statement of all the facts by Avhich he became such owner; but Avhcn the pleader alleges the general result, as he may, and also the particular facts by Avhich it is reached, and the facts do not sustain the result as alleged, the facts will control. Second. — The words “ duly foreclosed,” as used in the clause of the complaint quoted, have reference only to the final act of sale, as consummating the foreclosure, the previous steps of which had been particularly narrated. “ That on the said 23d day of September, 1861, the said mortgage was duly foreclosed by a sale,” &c. That is, the last act of the foregoing series took place on that day. The Plaintiff insists that the complaint alleges sufficient to sustain Ms action, leaving out all about the mortgage and foreclosure, in that it alleges that the Plaintiff is the owner of the land in fee, and that the Defendant Avrongfully detains it, &c. The difficulty in this view is, that the Plaintiff has made his OAAmership so entirely dependent on the foreclosure proceedings that one must stand or fall with the other. He says, “ that under and by virtue of said mortgage and foreclosure thereof, as aforesaid, the said Plaintiff is seized in fee simple,” &o. Now if the mortgage did hot authorize the foreclosure the Plaintiff has no title, as he has hung one upon the other. The question is something like the one decided in Irvine vs. Irvine, 5 Minn. R., 61. There the Defendant brought an action to disaffirm a deed made during his infancy. He Avas, of course, [39] •compelled to allege that he was under age when he made it, and as he could not disaffirm it.until he became of age, he was of equal necessity bound to allege that’fact. This latter .allegation was omitted, and the complaint was held bad. ILe having shown by 'his pleading that at a certain period he was under a disability, he must also show affirmatively that it had been removed. I apprehend the same rule would hold good in case of alienage. If citizenship was necessary to maintain any action, and it should appear in the complaint that the Plaintiff was at a period prior to the commencement of the same an alien, he would certainly have to remove the disability by an averment of naturalization or be .nonsuited. No disabilities are ever presumed, but the contrary, but when alleged they must be overcome by further facts or have their force. In this ease the Defendant is shown at a certain day to be the •owner of the locus in quo; he will continue so in presumption of law until the contrary is shown. The facts stated by the Plaintiff fail to take the title out of the Defendant, and consequently the Plaintiff has no right to the possession. This is a vicious mode of pleading, and very dangerous to the pleader. It is evidence and not facts that he sets out, but if he tries it, he must abide by the rule applicable to it. He must plead exactly what het would have to prove to make out'his case, and certainly a mortgage without any power to sell would not sustain the Plaintiff’s title made under a foreclosure by advertisement. The order appealed from is reversed. The Plaintiff may amend his complaint within ten days from notice of this decision.