Kyllonen v. Acme Harvesting Machine Co.

Bronson, J. This is an action to determine adverse claims concerning 120 acres of land in Logan County. The plaintiff has appealed from the judgment quieting title in the respondent Lehr, and demands a trial de novo. U. S. patent was issued to the planitiff in February 1914. In June 1913 he gave a mortgage upon the land to Dean & Company to secure $400.00. On December 12th, 1916 this Company assigned the mortgage to the Service Company which assignment of mortgage was filed and recorded on Jan. 25th, 1917. Foreclosure proceedings by advertisement were afterwards instituted upon this mortgage by the Service Company. The notice of mortgage foreclosure sale is dated Jan. 24th, 19x7; therein it describes the mortgagor as John H. Hyllonen, single, instead of John H. Kyllonen, single, as described and signed in the mortgage. This notice recites that the assignment of the mortgage was filed for record on January 25th, 1917. It otherwise correctly describes the mortgagee, the date of the mortgage, the date of its filing in the office of the Register of Deeds, and the book and page therein where it was recorded. It fixed the date of foreclosure upon March 19th, 1917. This notice of foreclosure sale was published in a newspaper for six successive weeks commencing on February 9th, 1917 and ending March 17th, 1917 without any change. On January 29th, 1917, the attorneys affidavit was filed for record correctly reciting the name of the plaintiff as mortgagor. O'n March 17th, 1917 sheriffs certificate was issued upon the foreclosure sale had to the Service Company wherein the name of the mortgagor was described correctly as stated in the mortgage. The affidavit of registered mailing by the Register of Deeds of a copy of the printer’s affidavit of the publication of the foreclosure notice (as contained in the abstract stipulated in the record) is dated March 27, 1917, and recites the correct name of the plaintiff. However, in the copy of this affidavit (Exhibit F) offered in evidence, the name of the mortgagor is stated as in the notice of sale. In evidence was offered the record of a registered letter through the post office department which shows That on March 27th, a registered letter was sent to the plaintiff, John H. Kyllonen and was signed by the plaintiff. Evidence was further offered that the plaintiff personally signed the registered receipt for such letter and personally received such registered letter. On March .28th, 1917 the Sheriff’s certificate of foreclosure sale was assigned to the defendant Lehr, pursuant to which, on March 25th, 1918, a sheriff’s deed was issued for the land involved. [41] There is also evidence in the record by the plaintiff himself to the effect that he received this registered letter; that he saw an attorney about this foreclosure and attempted to make some settlement concerning such foreclosure prior to the time of the expiration of redemption. The plaintiff contends that the foreclosure proceedings are invalid for two reasons, (i) because of the improper recital of the name of the mortgagor in the notice of foreclosure sale, and, (2) because it appears that the assignment of the mortgage to the Service Company was not filed for record ■until one day after the date stated in the notice of sale. In this State the ■rule has been stated by this court that in a foreclosure sale,” the statute is substantially complied with when the notice itself states facts correctly pertaining to the record, which record, if examined would conclusively show the error in the notice” and, further, that the rule of substantial compliance applies instead of strict and literal compliance. McCardia v. Billings, 10 N. D. 373, 381; 87 N. W. 1008. 88 Am. St. Re. 729, Sec. 27 Cyc. 1468. This is particularly so when no prejudice is shown or suggested. In the case at bar, it is very apparent that the error in the notice of sale was merely a typographical error. The notice otherwise correctly describes the mortgage, the parties and the land, and a mere reference to the record would conclusively show the fact of the typographical error. Furthermore, subsequent proceedings were had in the foreclosure sale as if the foreclosure proceedings were had throughout against the plaintiff properly described as the mortgagor, and as stated in the mortgage. To him, was mailed the registered letter of foreclosure sale, which was received by him properly addressed in a letter registered to him in his correct name. Prejudice is neither shown nor suggested upon this record. The statute, Sec. 8080 C X. 1913 does not require the notice of sale to be dated. It sufficiently appears that the assignment of the mortgage was duly filed and recorded at least two weeks prior to any publication of the notice. Manifestly again the date stated in the notice as the date is a clerical error. We are of the opinion that the foreclosure sale was not invalid upon the contentions made by the plaintiff. The judgment is affirmed. Ci-iRiSTiANSON, and BirdzSll, JJ., concur. RobiNsoN, Ch. J. and Grace:, J., dissent.