Berthold v. Holman

By the Covrrt Berry, J. In this case it appears that under a power contained in a mortgage, a foreclosure sale of lands situate in Pine County was made by the Sheriff of Pine County. The counsel for the respondent insists that although Pine was an organized county, yet inasmuch as it was attached to Chisago for judicial purposes, there could be no sheriff of Pine County, and -no valid sale by any person pretending to be such officer, but the sale should have been made by the Sheriff of Chisago County. The attachment of Pine to Chi-sago County is for jucUeial purposes. Certainly there is nothing of a judicial nature about the execution úrupais of a power of sale contained in a mortgage. Por such purposes Pine was not attached to Chisago County, and there is no reason — 344 — wby the Sheriff of Pine County might not act in such cases. But we are not left in this matter to construction alone. Sec. 1, Ch. 7, page 17 Laws, (1862 Ex. Bess.) defines among other things the effect of such attaching to be that, “ Every county which is attached to an organized county for judicial purposes, shall, for the administration of cimil cmd criminal justice, be taken and deemed a part of said organized county, ” and provides further for the execution of “ all process, civil or criminal, ” by the sheriff of the senior county. Even if it be conceded that under this statute the Sheriff of Pine County would be precluded from serving “process, civil or criminal, ” still there is nothing here to prevent the existence of the office of sheriff of Pine County for other purposes, or to prevent such sheriff from making a sale of this kind. We have no doubt that the Sheriff of Pine County was a proper officer to conduct this sale. The foreclosure sale came off on the 20th day of August, 1861, and the certificate of sale was filed. September 2d, 1861, the plaintiff being purchaser for the full amount then due upon the mortgage. This action was commenced July 13th, 1865. Prior to the sale, and after the execution of the mortgage, Fox, one of the mortgagors, and O’Brien his partner, without the knowledge or consent of the mortgagee, or of his assignee, the plaintiff, cut a large quantity of pine logs upon the mortgaged premises, and- during the summer and spring of 1865, removed a large portion of said logs. It is well settled in this State, that a mortgage is a security only, and that until foreclosure, the legal title to lands mortgaged remains in the mortgagor. Adams vs. Corriston, 7 Minn. 462; Hill et al. vs. Edwards, 11 Minn., 22. He may sell and convey the land subject to the mortgage, and he may sell and convey anything which though part of the realty is capable of being made personalty, by severance, subject to the right of the — 345 — mortgagee to keep Ms security good. 'When the pine trees in this case were converted into logs, they became personal property, and unquestionably the mortgagee could have prevented their removal from the premises, or have followed them if removed, had it been necessary to do so in order to preserve his security. Hutchins vs. King, 1 Wallace, 53: Parsons vs. Hamkin, ante page 108. But instead of taking any measures to this end, he purchases the mortgaged premises at the foreclosure sale, for the full amou/nt then d/ue on the mortgage, a portion of the timber trees which were a part of his security when the mortgage was taken having been converted into logs before that time. This purchase for the full amount of the debt was a complete satisfaction of the mortgage. It was a purchase of the realty, not of the logs lying upon the realty. The plaintiff took the la/nd alone in satisfaction of the mortgage. When the mortgage was satisfied, the mortgagee had nothing further to ask for. TTis mortgage being but a secivrity, it was made completely effectual when the debt was paid by the purchase. The plaintiff had received all that he had any right to demand. The plaintiff has no claim to the logs cut before the foreclosure sale. The complaint also alleges that the said Fox & O’Brien cut logs from the mortgaged premises after the foreclosure sale, to-wit, in 1864 and 1865, and it is alleged that the defendant Holman, who demurs separately,- and from the order sustaining whose demurrer the present appeal is taken, “ claims to own and holds possession of said logs, by virtue of a certain instrument executed by O’Brien & Fox, and dated October 20th, 1864, and filed and recorded in said office of the Surveyor General on the 31st day of October, 1864, which instrument in writing purports to convey all the said logs not conveyed to Folsom, to the defendant Holman, to secure the payment of certain large sums of money. ” The — 346 — complaint further alleges, in terms, the wrongful detention of the logs by Holman and his co-defendants. The mortgage in this case was executed in June, 1858, at a time when under the law then in force the purchaser was entitled to possession immediately after a mortgage sale. Pub. Stat. page 615, Sec. 11. By the act of July 29, 1858, Ch. 61, Paws 1858, it was enacted, that the mortgagor, or those claiming under him, should be entitled to possession until the expiration of the period of redemption upon payment of interest. This period of redemption under the act of 1858, and the law as it stood before the passage of the act, was one year. It is insisted in the case at bar, that the right of the purchaser to take possession of the mortgaged • premises immediately upon the sale, was a part of the contract of mortgage, and that to allow the act of 1858 to operate upon the mortgage in this case, would be to impair the obligation of the contract; but this has been -otherwise determined in this court. See Hayward vs. Judd, 1 Minn., 487, Per Emmett, Ch. J. Ib. 493, per Justice Atwater; Ib. 496, per Justice Flandrau; Carroll vs. Rossiter 10 Minn., 178. We understand the doctrine of Uaywmd vs. Judd to be that legislation, like the provision of the act of 1858, above referred to, at most, affects the remedy only, and not the obligation of the contract, and that it was competent for the legislature to deprive the purchaser of his right of possession immediate upon the sale, and to allow the mortgagor or his representative in interest to retain possession until the expiration of redemption. See also Donnelly vs. Simonton, 7 Minn., 175. This present action was instituted before the period of redemption allowed by law had expired. The purchaser at the sale was not then entitled to the possession of the mortgaged premises. Sec. 2, ch. 61, Laws 1858; Sec. 2, ch. 87, Laws 1860; Donnelly vs. Simonton, — 347 — 7 Minn., 175; Adams vs. Corriston, 7 Minn., 463. The only ground upon which, he could claim any right to the logs, was because they were a part of the realty, which he had purchased. Adams vs. Corriston, 7 Minn., 463. But as he had no possession, nor right to the possession of the land upon which they were cut, he could have no right to the possession of the trees severed therefrom and converted into logs. Rich vs. Baker, 3 Den., 79. Now this is an action of “claim and delivery,” called in common parlance “replevin,” and governed in the main by the same rifles as the action of replevin. Ames vs. Mississippi Boom Co., 8 Minn., 471. But in replevin, the right of immediate possession of the property sought to be recovered was a sine qua non, and so it is in the action of claim and dei livery. 2 Gr. Ev., sec. 56; 1 Ch. Pl., (164); Dodworth vs. Jones, 4 Duer, 202; Wheeler vs. Train, 3 Peck, 257; Rockwell vs. Saunders, 19 Barb., (S. C.,) 481; Lewis vs. Buck, 7 Minn., 116. Section 131, ch. 60, page 549, Pub. Stat., following this rule in prescribing the contents of the affidavit necessary to entitle the plaintiff in an action of claim and delivery to the possession of the property in dispute, enacts that it must contain, among other things, statements to the effect “that the plaintiff is the ovmer of the property claimed, * * or is lawfully entitled to th.&possession thereof,” * * * and “that the property is wrongfully detained by the defendant.” As the plaintiff in this case was not, in his capacity as purchaser at the mortgage sale, in possession or entitled to possession of the land, or the logs, he cannot maintain this action; yet the legislature did not leave him without remedy, for having deprived the purchaser of the right to take possession immediately after the sale for his own protection, section 3 of the act of 1858, enables such purchaser to secure protection by — 348 — applying upon eight days’ notice to the court, or a Judge thereof in vacation, for an order or injunction to stay waste, &c.; nor is he deprived of whatever other remedies were in existence. m The complaint alleges that the original mortgagee was put into possession of the mortgaged premises by the mortgagors at the time of the execution of the mortgage, with the agreement that he should hold such possession until the mortgage was satisfied. It does not appear, however, that this possession was attempted to be transferred to the plaintiff, who claims to hold by an assignment of the mortgage, nor that the plaintiff ever had possession nor right of possession; and it must be admitted, as remarked by the counsel for respondent on the hearing, that the complaint does not very clearly show that the mortgage was ever assigned to the plaintiff, in such way as to entitle him to pursue the remedy of foreclosure by advertisement ; but we have preferred to rest our determination upon points which go to the bottom of the matter. The views which we have expressed dispose of several points made on the argument, to which we have not particularly referred. Our conclusion is that the demurrer was well taken, and that the order sustaining it must be affirmed.