Rochat v. Emmett

DickinsoN, J. The principal controversy here is whether the description of the premises in the mortgage from the defendant, in 1872, and through which the plaintiff’s title is derived, was sufficient to embrace that part of the two lots described in the complaint which is included in, and is properly a part of, Dayton & Irvine’s addition. The description in the mortgage is: “Lots 9 and 10, in block 51, in Eice & Irvine’s addition to St. Paul, according to the recorded plat thereof, the same being the homestead of the parties of the first part.” This description was sufficient to embrace the whole of these two lots. The defendant, owning the property, had power to convey it by such terms of description as he might select, provided the description designated the land intended to be conveyed with certainty, or so that it could be ascertained with certainty. It may be conceded, without impairing the sufficiency of this de [422] scription, that the persons platting Eice & Irvine’s addition never owned that part of the platted property west of the section line, and which was afterwards included in the Dayton & Irvine’s plat, and that their acts were ineffectual as a statutory platting. The sufficiency and extent of the grant by the defendant’s^ mortgage did not depend upon the granted premises being with propriety or rightfully included in the plat of Eice & Irvine’s addition. It was enough, for the purpose of designating the granted property, that it was described with certainty by reference to the plat of that addition which had for many years been in the office of the register of deeds, in the custody of that officer, and used, treated, and recognized as a part of the records of that office, there being no other plat of such addition. That plat included the property in question, and it was there delineated as lots 9 and 10, in block 51. It is unnecessary to resort to the further designation of the property, as being the homestead of the mortgagor, in aid of the description. The eighth, ninth, and tenth assignments of error relate to the disposition of such surplus of the proceeds of the foreclosure sale as might have remained after satisfying so much of the debt as was then due, and to the validity of the statute relating to that subject. This is not relevant to any question involved in this case. This property was sold, in proceedings duly conducted under the statute for the foreclosure of the mortgage, in 1879, and no redemption has ever been made from the sale. The plaintiff holds the title acquired by that foreclosure sale. Whether the mortgagee was justified in applying the proceeds of the sale to the satisfaction of the entire debt, although it was not all yet due, is a question which does not affect the title in controversy. Judgment affirmed.