Oswald v. O'Brien

Mitchell, J. To secure the payment of the same debt, the defendants executed to plaintiff two mortgages, one on real property, and the other on certain chattel property. Plaintiff, having previously foreclosed the chattel mortgage, and applied on the debt what he claimed to be the net proceeds of the sale, brought this action to foreclose the mortgage on the real property. While a great deal of extraneous matter was introduced on the trial, yet the substance and gist of the defense was that the foreclosure of the chattel mortgage by plaintiff was unauthorized, illegal, and fraudulent, and therefore that defendants were entitled to a credit on the debt, not merely for what the chattel property brought at the pretended foreclosure sale, but for the actual value of the property. One ground upon whichit is claimed that the sale under the chattel mortgage was ill egal is that there was nothing then due on the debt secured thereby. [337] But upon the facts found by the court, which were abundantly supported by the evidence, the plaintiff was fully justified, under the “insecurity clause” in the mortgage, in taking possession of and selling the property. The evidence also fully justified the finding of the trial court that the sale was made in pursuance of due notice, and was conducted in accordance with the provisions of law, honestly, openly, and fairly, provided Housel, the person who conducted the sale, was such an officer as was, under the statute, authorized to do so. This is really the only question in the case. The property was bid in at the sale by the plaintiff himself. Laws 1885, ch. 171, provides that, if the mortgagee or pledgee shall wish to bid at the sale of the mortgaged or pledged property, the sale shall be at public auction, and upon like notice as is required in case of execution sales, and shall be conducted by the sheriff, or his deputy, of the county, or by a constable of the town, in which such mortgaged or pledged property, or some part thereof, is situated at the time of giving such notice. 1878 G. S. ch. 10, § 149, provides that all police officers of cities shall possess the powers of constables at common law or by the laws of this state. In this case the property was situated and the sale took place (at public auction) in the city of Minneapolis, and was conducted by a policeman of the , city, purporting to have been appointed by the board of police commissioners pursuant to Sp. Laws 1887, ch. 9, § 6, at the request of A. P. Abell, J. P., “as special policeman, to serve without expense to the city, and have police powers to preserve the peace and protect the property within the limits known as ‘justice court, serving writs;’ but said special policeman shall nof exercise any authority nor wear any badge of office outside the limits named in this appointment.” Section eight (8) of the same chapter, after specifying certain required qualifications of members of the police force, provides: “All policemen so appointed shall possess all the common-law and statutory power of constables. ” It is somewhat difficult to classify this appointment as special policeman. The last clause of section six, (6,) under which it would seem that the.appointment was assumed to be made, evidently contemplates the appointment of policemen or watchmen, with power merely to preserve the peace and protect property within certain prescribed limits. The limits [338] specified in this appointment are “the limits known as ‘justice court.’ ” This cannot refer merely to the room in which the court was held; for an important part — indeed, the most important part— of the appointee’s duties was “serving writs,” by which must have been meant writs issued by the justice, which could be served anywhere within the limits of his jurisdiction. And this is exactly what the evidence shows that this policeman was accustomed to do, viz., serve all subpoenas, summons, warrants, attachments, and executions issued by this justice, and make sales on executions anywhere, at least, in the city of Minneapolis. Therefore while his appointment • Teeites that it was made in accordance with the provisions of section six, (6,) yet he was not a special policeman, with' only the limited powers within a limited area provided for in that section, but a policeman, at least defacto, with all the powers of a constable within the limits of the jurisdiction of Justice Abell, which was at least coextensive with the city of Minneapolis. He was therefore such an officer •as was authorized, under Laws 1885, ch. 171, to conduct the mortgage sale. The great inadequacy of the price bid at the sale, as compared with the actual value of the property, is also urged as establishing the fraudulent and illegal character of the sale. But while gross inadequacy of price, coupled with other circumstances, may be strong evidence of fraud, yet, especially where the sale was at public auction, at is not, of itself alone, sufficient ground for holding a sale void. As was said in one’case, “inadequacy.is the general consequence of such «ales.” Nor is the mortgagor in this case in very good position to urge this objection; for a sacrifice of the property was the natural ■consequence of his own course of conduct in attempting to dispose of the property for the purpose of defrauding creditors, which resulted in complicating the title in a tangle of litigation, of which he himself seems to have been the moving spirit. Order affirmed. (Opinion published 51 N. W. Rep. 220.)