Gillette v. Abrahams

WPIITING, J. [1] Defendant held a second mortgage against land belonging to plaintiff. The land was situate in this state. The mortgage was of record, and it contained a power of sale. There 'being default in the payment of the debt secured, defendant exercised the power of sale, purchased the land at the sale, and, at end of the statutory period for redemption, received a sheriff’s deed on. such sale. Plaintiff thereafter brought this action, seeking to have the title to said land quieted in him. It is evident that plaintiff’s theory is that the foreclosure was void, and not that the foreclosure was voidable. Upon the latter theory he would have no standing in court, as he did not seek to do equity by bringing into court the amount of the overdue indebtedness. The facts upon which plaintiff" — 319 — attacked the foreclosure and- which facts are undisputed, were: (a) That the published notice of sale gave the date of the mortgage to be "December 20, 1912,” when the true date thereof was "September 20, I9r2”; (b) that the amount claimed in .such notice as the amount due on the mortgage was largely in excess of the true amount due. The trial court sustained the sale and quieted the title in defendant. From the judgment so quieting title and from an order denying a new trial, this appeal was taken; and the only question before us is the correctness of the hold-ing of the trial court sustaining the foreclosure sale. [2] Respondent urges that this court has virtually disposed of any question dependent upon the erroneous statement in the notice as to date of mortgage by its opinion in Iowa Investment Co. v. Shepard, 8 S. D. 332, 66 N. W. 451, where the court stated: “Mere inaccuracies, not calculated to be misleading, are insufficient to invalidate a sale, in the absence of a claim that any one has been injured.” To determine just what this court meant by “inaccuracies,” one needs to examine the facts in the Shepard Case. But, first, we would correct an erroneous statement made in the opinion in that case. The court said: “Evidently the object of the notice contemplated by statute is to fully advise all interested persons and the general public of the existence of conditions which authorize a foreclosure by advertisement.” If such were the object of the notice, our statute would require that it recite the existence of the facts upon which the right to foreclosure — to exercise the power of sale — depends; the notice would have to recite the existence of the matters set forth in section 2877, Rev. 'Code 1919. The purpose of the notice is clearly shown h)' the things which must appear therein. Section 2880, Rev. Code 1919, provides: “Every notice must specify: “1. The name of the mortgagor and mortgagee, and the assignee, if any. “2. The date of the mortgage. “3. The amount claimed to be due thereon at the date of the notice. — 320 — “4. A- description of the mortgaged premises. * * .* “5. The time and place of sale.” From such notice interested parties should be able to identify the mortgage; learn who were and are the parties thereto; know the amount of lien claimed against the property t ■what property is mortgaged; and when and where to attend if interested in the sale. In the Shepard Case, it was not erroneous statements in the notice with which the court had to deal— there were no erroneous statements. The court stated that the “syntax and grammatical construction of the notice” were open to criticism; it held that, though inaccurate in language, the notice did fairly specify truthfully everything prescribed by the statute; and, in support of its conclusion that such “mere inaccuracies * * * are insufficient to invalidate a sale, ”* * it cited four cases, in ever)'’ one of which, as in the case before it, there were inaccuracies of language in the notices, and yet the courts hadi held that, under a proper construction of the language used in each of said cases, every statutory requirement as to contents of notice was complied with. It is therefore clear that this court, in the Shepard Case, in the use of the word “inaccuracies,” did not have in mind a case where the notice, when fairly construed, failed to specify all that the statute requires, or where the notice contained an erroneous specification. [3] It is perfectly clear that the error in the notice before us .was unintentional, and appellant has made no claim that either he or any one else was misled by the error therein. Respondent has cited several cases -where, under such facts, the sale has been upheld; but an examination of these cases reveals the existence in every case of the further fact — which was expressly given weight by the court in each case- — that the notice gave such reference to the record of the mortgage as directed one to such record, and an examination of the record would in each ✓ase reveal and correct the error. McCardia v. Billings, 10 N. D. 373, 87 N. W. 1008, 88 Am. St. Rep. 729; Turansky v. Weinberg, 211 Mass. 324, 97 N. E. 755; Brown v. Burney, 128 Mich. 205, 87 N. W. 221; Lau v. Scribner, 197 Mich. 414, 163 N. W. 914; Reading v. Waterman, 46 Mich. 107, 8 N. W. 691. — 321 — We should have no hesitancy in sustaining the lower court if the notice now before us had. contained any reference to the record of the mortgage; but no case has been cited, and ;we know of none, wherein it has been held that a notice, defective in that it fails to specify, or makes a false specification as to, one of the matters which the statute says “must”- be specified, will support a foreclosure sale in the absence of some such reference to the record as can be fairly held to correct the error. It cannot be said that the decision of this court in Loomis, v. Stoddard, 173 N. W. 859, goes any further than its decision in the -Shepard Case. A reading of such decision discloses that the majority of -the court were of the opinion that the ambiguity on the face of the notice was cured by the fact that there is no township “one hundred nine” in Faulk county; and that such notice, when read in the light of-such fact, clearly specified the correct description of the mortgaged premises. [4] Statutory sales under powers of sale are in derogation of the common law, and statutes authorizing same should be strictly construed, especially when as mandatory in form as our section 2880, Rev. Code 1919; and, while we would not go as far as the Minnesota court in holding to a strict compliance with the letter rather than the spirit of such statutes, and while we concede the soundness of every decision cited by respondent, we must and do hold that there is not even a substantial compliance with the requirements of such section 2880, where a notice entirely fails to specify one of the facts therein noted, or contains an erroneous specification of such fact, and contains nothing in any manner supplying the omission or curing the error. To hold otherwise would be to hold that every sale under power must be sustained no matter how defective or erroneous the notice, provided the owner of the land cannot point out wherein he was prejudiced by such faulty notice, and provided the defect, or error was not the intentional act of the party giving the notice. If such a ruling would be sound, then a sale without any notice should be upheld where the omission to give the notice was unintentional and the owner of the mortgaged premises cannot show that such failure to give notice led to an unfair sale. — 322 — It becomes unnecessary for us to consider the effect of. specifying in the notice an excessive amount as the amount claimed due. [5] 'Respondent, however, contends that appellant is estopped by his laches from now questioning the validity of the sale. The sale took place in August, 1915. Plaintiff was a nonresident of the state. The land was in the actual possession of his brother, a former owner of the land and the party who executed the mortgage. The evidence discloses that neither appellant nor his brother ever saw the notice of sale, and, while the trial court found that both appellant and his brother had actual knowledge of the sale before the close of the year of redemption, such findings, so far as it related to appellant, has no support whatsoever in the record. Respondent pleaded and states in his brief that, after he acquired his deed, he obtained possession of said land by proceedings in forcible entry and detainer against appellant’s brother. The record contains no evidence or finding to that effect. The court found that respondent was in possession of the land “under and by virtue of the said foreclosure proceedings.” There is no claim that respondent has expended one cent upon the land since the sale. On the other hand', plaintiff’s brother, both during' the year of redemption arid after the expiration thereof, expended considerable sums in the erection of improvements. The year of redemption expired in August, 19:16. AVe have nothing to show when respondent acquired possession of the land. This action was instituted bjr appellant March 1, 1917. Even if we should consider appellant’s brother to be the real party in interest— the real owner of the land — as contended by. respondent, yet, in view of the¡ fact that he had a right to treat this sale as invalid and not merely voidable, it cannot be claimed that the record discloses any laches or other fact that worked an estoppel against •him. West v. Banking Co., 33 S. D. 465, 146 N. W. 598. [6] But respondent further contends that appellant could not, in any event, prevail because respondent is, if the foreclosure is invalid, “a mortgagee in possession,” and a mortgagor’s only remedy against a “mortgagee in possession” is an action to redeem from the mortgage. ’ Respondent cites AA^est v. Bank — 323 — ing Co, supra, in support of such contention. In that case it was stated that “the sole remedy against a mortgagee, who is in possession of the mortgaged land under the express or implied consent of the mortgagor, is through redemption from the mortgagee.” Under the ruling in the West Case, respondent is not a “mortgagee in possession” unless the foreclosure was invalid. The present action is one- seeking a judgment which, in effect, would hold respondent to be a “mortgagee in possession.” Appellant has a right to have this fact determined-. If determined in his favor, and he then seeks any remedy against respondent other than redemption — such as ejectment- — it will be for the court to determine whether, under the law of the West Case, appellant is entitled to such remedy — which determination might perchance rest upon whether possession was voluntarily surrendered to respondent. The judgment and order appealed from are reversed. McCOY, J, not sitting.