Casey v. McIntyre

Vanderburgh, J. Plaintiff alleges in his complaint that he has been in the actual possession and occupancy of the premises in controversy for more than five years, and is the mortgagee named in and [529] the owner of the two mortgages described in the complaint. In the absence of farther allegations, this was enough to entitle plaintiff to maintain the action to determine defendant’s adverse claim. The pleadings show that, prior to the date of the mortgages mentioned, one Thomas Casey was the owner of the premises, the title to which had passed to one Loomis on the 2d day of April, 1887, and who on that day executed to plaintiff the mortgages referred to, which are denominated “purchase-money mortgages,” and who was the owner thereof when the prior mortgage upon the same premises set up in the answer, and running to Henry O. Fridley, is therein alleged to have been foreclosed, viz., on February 28, 1888. The answer denies the possession of the plaintiff as alleged in the complaint or at any time, except for three months preceding the commencement of the action as a tenant of Loomis. The execution of the mortgages to plaintiff is admitted. The answer sets up specifically the proceedings for the foreclosure and sale of the premises under the prior mortgage to Fridley, above referred to, including the publication of the notice, etc. The reply substantially puts in issue the foreclosure of the mortgage by a sale of the premises as alleged or otherwise. It is true the answer alleges that the mortgage was duly foreclosed. But this general allegation is controlled by the special averments in respect to the foreclosure proceedings had, which include none of the service of notice upon the owner or occupant, and hence are insufficient, in a case of foreclosure by advertisement, where the premises are in fact actually occupied. Pinney v. Fridley, 9 Minn. 23, (34.) The lawful foreelosure'of the mortgage is not therefore admitted by the reply. And the notice by publication, being the only notice alleged in the answer, would not by itself be sufficient if the plaintiff was actually in possession and occupying the premises at the time, for in that case the law required the notice to be served on him. It was competent, under the complaint, for plaintiff to show that he was a mortgagee in possession. If he was quietly in possession-as such, it was not competent for the defendant, a third party, and a stranger to the relations of plaintiff and Loomis, to raise the question whether he was let into possession by Loomis, or whether, as [530] between them, plaintiff was strictly authorized to continue in possession or not after Loomis got title. As to this there was no prejudicial error. The defendant, as subsequent mortgagee, was bound to take notice of such' possession, and that no notice of the foreclosure proceedings was served upon the plaintiff, or upon Loomis, the owner. Defendant claims that the certificate of sale upon foreclosure was prima facie evidence that all the statutory proceedings were regular, and hence that the finding that there was no notice served on Loomis, the owner of the land, is not supported. But unless the owner is in actual possession the statute does not require - service of such notice on him, but upon the occupant of the premises. The certificate is not presumptive evidence, then, in this case, that the notice was served on the owner. It is therefore unnecessary to consider what effect would have been given it in this case if service had been shown to have been actually, made on the owner, though not made on plaintiff in possession. When it appeared that the premises were occupied, and that the occupant had not been served, the statutory presump' tion arising from the certificate (Laws 1883, c. 112) was rebutted, and the foreclosure proceedings were shown to be fatally defective. Heath v. Hall, 7 Minn. 243, (315;) Holton v. Bowman, 32 Minn. 191, (19 N. W. Rep. 734.) Service upon the occupant is evidently intended, not for his benefit solely, but for the owner as well as others interested-in the land, in order to secure more effectual notice of the foreclosure proceedings. Wakefield v. Day, 41 Minn. 344, (43 N. W. Rep. 71;) Western Land Ass’n v. McComber, 41 Minn. 20, (42 N. W. Rep. 543.) No subsequent waiver by the occupant would validate the foreclosure as respects the owner, unless he was the owner or authorized to bind him. There is nothing in this record to show' any such thing. Defendant’s right to redeem must depend upon a valid foreclosure, .to constitute which the service of notice was necessary. And we fail to see ■ how the filing by plaintiff of notice of- an intention to redeem could by itself operate as an estoppel upon him in this action, or excuse the defendant from investigating the foreclosure proceedings, under which neither could acquire title through a redemption, and both must proceed at their peril. Defendant was [531] not warranted in relying on such notice, and it is not found that she did. The finding and decision of the court that the foreclosure is invalid is sustained by the record, and the defendant’s attempted redemption was therefore ineffectual. From some facts incidentally disclosed by the record, we should have been glad to have arrived at a different conclusion on the merits, if we could have done so; but we think that, upon the law of the case, the judgment subrogating the defendant to the rights of the mortgagee or assignee of the Fridley mortgage as favorable as she had any right to expect. Judgment affirmed.