Cutting v. Patterson

COLLINS, J. The decision of this case depends upon a construction of that part of Gr. S. 1894, § 6032, reading as follows: “In all cases, a copy of such notice shall be served in like manner as summons in civil actions in the district court, at least four [379] weeks before the time of sale, on the person in possession of the mortgaged premises, if the same are actually occupied.” The mortgage in question was foreclosed under a power, but no notice was served upon the mortgagor or any other person; the affidavit filed being to the effect that the premises were at the time of the foreclosure wholly vacant and unoccupied. Whether they were or not is the salient question. The mortgaged property consisted of four small lots or tracts of ground in the city of Duluth, one hundred by one hundred forty feet in size in the aggregate, equal to two full lots, fronting upon West Second street, which street was wholly unused, and extending back to a public alley twenty feet in width. Northerly and across the alley were two other lots, taken together one hundred by one hundred forty feet, fronting upon West Third street. At the time the mortgage was given, the alley was unopened, and the entire premises were inclosed by a fence as a single tract. The mortgagor resided in a house upon one of the lots facing upon Third street, and in the rear of the other lot, facing upon Third street, was a barn used by him. The property mortgaged was at that time used for a garden by the mortgagor. Subsequently, and before the foreclosure, the alley was opened and graded, and the fence changed so that there were two inclosures, one fronting upon Third street, and one — the mortgaged portion —fronting upon Second street; the fences in the rear of each tract being placed along the lines of the alley. The fence in the rear of the northerly parcel, on which the mortgagor dwelt, was connected with the barn, and at just this point was a small gate opening upon the alley. Almost exactly opposite, across the alley, was another gate, through which one might pass through the fence surrounding the mortgaged land. As before stated, this particular tract of land was used by the mortgagor for garden purposes when the mortgage was given, and it continued to be so used, in the proper season of each year thereafter, and also subsequent to the foreclosure, which was commenced in January, 1899; the mortgagor continuing to reside in the dwelling house before mentioned until his death, in October, 1899. It stands admitted that the foreclosure proceedings were [380] valid in all other respects. It is contended by these plaintiffs, who are the heirs at law of the mortgagor, that under the conditions existing at the time of the foreclosure proceedings the statutory notice should have been served upon the mortgagor, as the person in actual occupation of the mortgaged premises. Upon the facts shown, and as we construe the statute, this contention is correct. It is quite clear that in using the quoted language a distinction was attempted to be made between a person in possession simply, and a person who not only had possession, but was in actual occupancy. In the one case notice was necessary; in the other, it was not. While the power to foreclose is derived from the convention of the parties, the proceedings in the exercise of that power, so far as regulated by statute, are wholly statutory, and in order to constitute a valid foreclosure all of these statutory requirements must be complied with, substantially. The words in question cannot be construed narrowly, so as to defeat the real object intended. The purpose of requiring this notice was to notify the party occupying the premises and presumably interested, that foreclosure proceedings under the power had been instituted, and that a foreclosure was in progress. Its object was to protect a right when foreclosure proceedings were being had by advertisement, and to prevent a wrong which might result if no notice was required to be given to persons not only in possession, but also in actual occupation. “Actual occupancy” is defined as an open, visible occupancy, as distinguished from the constructive possession which follows the legal, title. “Actual possession” has practically the same meaning. It means possession in fact, effected by actual entry upon the premises and actual occupancy. The word “actual” is commonly used in a statute in opposition to “virtual” or “constructive,” and calls for an open, visible occupancy. Black, Law Dict. 29, 30. The same definitions are found in 2 Bouvier, Law Dict. 254, 349. But further consideration of the definitions and further analysis of the statute seem unnecessary. The mortgagor resided in a dwelling house situated upon inclosed premises' across the alley, within one hundred feet of thé land involved. His barn, [381] in the same inclosure, was just across the alley. Small gates had been placed in the fences, about opposite each other, — very suggestive that both tracts were used and occupied by the same person. The mortgaged tract was inclosed with a substantial fence, and in the growing season was under cultivation as a garden, and by the mortgagor. It is true that the foreclosure was in the winter, with deep snow on the ground. But the fence was then in plain sight, and so were the suggestive gates. From these visible facts a person examining the premises should infer others. We hold, on the facts as they appear in this case, that the mortgagor was in actual occupation of the premises, within the meaning of the statute, and was entitled to notice of the proceedings under the power. Order reversed.