Moore v. Carlson

Jaggard, J. Plaintiff and appellant brought this action to determine adverse claims. Defendant and respondent Carlson asserted title through a [434] foreclosure by advertisement, inasmuch as plaintiff had failed to redeem from the foreclosure sale within the year. Plaintiff replied, and alleged that the mortgage given by him to defendant Carlson was assigned to one Cress, who reassigned it to defendant Carlson, and that both assignments were recorded, but were not mentioned nor referred to in the notice of sale to foreclose said mortgage. Defendant Carlson demurred to the reply. The court sustained the demurrer. This appeal was taken from that order. The controversy turns upon this part of section 4460, R. L. 1905: “Each notice shall specify: (1) The name of -the morgtagor and of the mortgagee and of the assignee of the mortgage, if any. * * *” The respondent insists that the purpose of the statute is to “satisfactorily establish and show the right of the party who is proceeding under it to invoke its aid. Backus v. Burke, 48 Minn. 260-269,” 51 N. W. 284, 286. It would have served no useful purpose to have inserted in the notice the name of the assignee to whom the mortgagee transferred the mortgage and by whom that mortgage was in turn assigned to the mortgagee himself. This view of the construction of the statute we are not able to accept. Foreclosure by advertisement is purely a statutory creation. One who avails himself of its provisions must show an exact and literal compliance with its terms; otherwise he is bound to profess without authority of law. If what he does failed to comply with the requirements of the statute, it is void. While the same strictness as in adverse tax proceedings is not required, the analogy is suggestive. It is elementary that the construction must be favorable to persons seeking to redeem. It is true that the language uses the word “assignee” in the singular number; but it is equally true that such a term may be construed to mean more than one person. Section 5513, subd. 2, B. L. 1905. See Selborne, J., in Conelly v. Steer, 7 Q. B. D. 520. To name the various assignees is not without value to the mortgagor, lie is entitled to know the history of the transaction, and to consider in connection with his action the various assignments which affect the title of the person seeking to foreclose by advertisement. It follows that the demurrer should have been overruled. [435] In the syllabus to Hathorn v. Butler, 73 Minn. 15, 75 N. W. 743, it was said: “In the notice the name of each assignee shall he specified.” That syllabus was written by the court, and received the sanction of the court. Irrespective of whether it was made necessary by the opinion, we regard it as sound law. Reversed.