GREEN et al. .
November 14, 1889.)
I . '. .
.. (Otrcuit Oourt; D. 1.
MORTGAGBll-DESCRIPTION .0J' PROPERTY.
Wberila mortgage shows thlJ,t the parties reside in tile state, and describes. the land according to the United States government survey and legal subdivisions, but does not state the COUJ;lty and state where the land is situated, it will be presumed to be in tbe state mentioned, and the mortgage may be foreclosed by advertisement. S. SAME-FoREOLOsuREmroER POWER-AMENDMENT OJ' LAW. '. . E;ale and redemption under a power in the mortgage are governed by the law:\n .force when the mortgage was executedt are notll,ffected by a subsequent act extending the time of redemption, or maJring the time of redemption run from the fiUng of. notice of tbesale Jnlthe registry of deeds. .
InEquity. On complaint to set deed. J()hnIJ·.Ie W. lJ. Sanborn; for complainant., W.·,E.IIale, for defendants.,
NElSON, J. Suit is brought to set aside a quitclaim deed, and delivered by the complainant, J. Allison Smith, to John Greenet al.,· June 15, 1886,on the ground of fraudulent representations, (which complainant believed wel'etrue and relied upon,) made hysaid Green and the other defendants acting for him and on his behalf. Tne'land conveyed is described as lot No.4 of the S. W. t of section 28 1 town" ship 29,range 24, located' andeituated in Hennepin county, iIi/the state of Minnesota. Testimony is taken inregar.d·tothe alleged.t'r$.ud,l but, in' thee view taken, tbe conclusion of law,entitling the defendants toa.deereedismissing the bill, upon the stipulation that the following facts aretruej renders it unnecessary to consider thatquestion. The determination pf the suit rests upon the validity oLa foreclosure by ndver;' tisement·ofamortgage,and the questions presented are: (1) Is atHn'; strum4Jnt in the form ofa mootguge, which describes the land accurately,) aeoordingtothe survey of the government of the United States; andfr(>m that des<irlption it appears the land is located in .Hennepin county tiD tbetenitory(now state) of Minnesota, not so declared in the in;" strument, such a be foreclosed by advertisement and sOld! according' to the i laws Qf the. territory (now state) of Minnesota,: and 'byt such sale does a legal' title become vested in the purchaser? '(2)Ho'8' &uch mortgage'been duly; and legally so as to bar the equitY. ofredemptidn:,oand vestSi title'beforetheexeaution and delivery:dHhe quitclaim deMiirom Smith to: Gieen?, '; " . ,',1m following, are the .. On: April' 22; :1:857 the defendants, was the owner in fee of thefollowing land: Lot No.4 of the S. W. t of section' 28, 24, according to the survey: of: the: United States/go"lernment,and' contaihing eated in county of Hennepin andt.erritOi'y (how state) of.Minnesota., Qn"tbat'dayGreen,sold and :conveyed,theland :to Snyder, MoFar.lane,. for libe deferred: pay.. and Cook, ·takirig,amortgageon,the land as meut of·$2.914.10 t , part ofth:e purchase ,TJnis . faiiled
to name the county and territory (now state) in which the land is situ· ated, but otherwise accurately descri,bes the land according to the.govern· ment survey, and recites the.facts that the mortgagor and mortgagees are residents of Hennepin county and territory (now state) of Minnesota, and that the acknowledgment was taken before a notary of said territory, (now llud the mortgage in said c0t:lnty and The mortgage was recorded on May!, 1857, of the same year. It contained l\ of sale authorizingJ6rec;:losure and'sale at public auction, accortlingto the statute in such case made and provided. The grantor and grantees ware all citizens and residents of the state ofMinnesota. On Aprilf5".,J'$5a, Cook sold and his interest in the land to Snyder and McFarhine. and the deed for the same was recorded June 25,1858. On July 23, 1858, Snyder and McFarlane sold and conveyed, by warranty deed, the said property toJ. Allison Smith, of the state of Illinois, "subject to a mortgage in· favor of John Green." There was no other mortgage to Green but the one hereinbefore described. The acknowledgments of all the hereinbefore described instruments were taken before a notary publieofthe state of On January 16, 1861, the purchasemon.ey remaining unpaid, whioh was secured by the mortgage, Green proceeded to foreclose, it, and·caused to be printed and 'published a notice ofsl;\id foreclosure sale, as appears by the affidavit of the printer, and Under said foreclosure'proceedings the property was sold at publie auction ,to 'said Gretm, h.e being the highest bidder, and a certificate to which was attached a true copy olthe·notice of foreclosure was given the purchaser by the sh4;lrith)f Hennepin county, who made the sale, and said, certificate contained a statement that the sheriff made the sale of the land: described in the mortgage:; under mortgage foreclosure, by virtue of the power therein. A dupli.cate of this certifi.cate was on March 4, ,within 10 days fromi'the,time of the sale, filed by the sheriff in the office oUhe register of the mortgage was recorded, and on February 25, 1862, it was recorded.: On April 12, 1862, an affidavit. of publication or the notice of sale, and an affidavit of the sheriff of the fact of. said :8a1e, were also Also on April12, 1862, no rademptionibeilag:made from such aale,.thesheriff made and executed and deliveredi8 deed ,of said laniLtpGreen, the purohaser,which was duly recorded, January '10, 1863. Green ,sUbsequently, in 1875, sold to one Cowles the land,the latter giving a mortgage thereon for part of the pur· chase moiley, !which mortgage was on failure .of Cowles to pay, and bid in by! Green, who, by virtue oHhe expiration of the time for redemption in 1880, having received a sheriff's certificate which was duly recorded. became the'ownerof title'oonveyed to Oowles.
CONCLuSIONS j pF I.AW.
, A oourt 'takes judicial notice of) ,the government surveys and legal subdivisiona,a.hd when land isao conveyed, though the county and state are not named, yet,. if the parties, reside in the state, the court will presume theland,is, situated there. The land is described with sufficient te.rtainty,.andthe mortgage could be by a,d vertisehlent. Bur-
SX1'l'H tI. GIUeEN.
seU v. Sweezey, 22 Mich. 235; Bybee v. Hageman, 66 Ill. 519; Quinn v. ahampagne, 3S Minn. 322, 37 N. W. Rep. 451. 2. The ordinary rule applies that the sale and right of redemption under the power given in the mortgage contract is governed by the law in force at the time the mortgage is made, and not at the time of the foreclosure, and so all the rights of the parties after such foreclosure sale must be determined. No 1].otice of sale under a foreclosure byad\'ertisement, by virtue of the power contained in the mortgage, was required to be filed in the office of the register of deeds by law to bar redemption, when this mortgage was made. See Compo St. Minn. 646. The power itself or the statute did not require it; only a published notice was necessary, and when that was made it is all that anyone interested in the land was entitled to. Where personal service upon the mortgagor and others of the notice of sale is required by law, or constructive notice by filing a copy of the published notice the office of the deeds, a sale without such notice does not bar redemption; butit' the statutory provisions in force at the time the mortgage is made, including those re)ll:ting to notice of the sale or the conduct of it, are strictly. followed,'it IS all that is necessary. This law, not the court, fixes and establishes the conditions and extent of the power,and the rights which pass to a purchaser when the power is executed. No subsequent law can impose additional burdens upon such rights,and require something else to be done after sale than was necessary or contemplated. The law in force when this mortgage was made fixed the time of redemption from sales made under foreclosure by advertisement "to twelve months after such sale." ld. p. 645, § 11. The act of July 29,1858, provided "that the original debtor, his heirs or assigns, shall have the period ofoneyea:r for the redemption, upon each and every sale foreclosure, * * * after the same shall have been made, and notice thereof filed in the office of the register of deeds in the county where such real estate shall be sit'llatedj" and the act of 1860, amending the act of 1858, extends the time of redemption to three years after sale and notice thereof, as aforesaid. To apply either of these acts to the foreclosure and sale by advertisement of this mortgage' would annex a condition to the power of sale which did not exist, and in 80 doing It court would be making a contract for the parties, instead of enforcing the one made by themselves. 2J60e8, Mortg. (4th Ed.) § 1821, to and including section 1827; HiUebert v. PurfRJr, 28 Minn·.499, 11 N. W. Rep. 84; Carrollv. Rossiter, 10 Minn.174,(Gil. 141.) The time for redemption certainly expired when the deedexecuted Apri112, 1862, in pursilance of section 12, p. 645, Compo St. Minn., was recorded. Smith'fI right of redemption was then barred, and he had no interest in the property at the time the quitclaim deed from him was obtained. Thompson V. Foster, 21 Minn. 319, cited by complainaIit's counsfll, relates to foreclosures by action, and hasnd application to the facts in this case. Decree will be entered dismissing the hill of complaint. ' . ' .. ,
Urn v. Ferguson, 69 Ind. 486; Prieger v. Insurance 00., 6 Wis. 89; RUB-
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",: ,of, oJljllPf of the,I!I,U1;vlvor, gether,With' of the' decedent, o.btall).ed Judgment against the cor· ; ;", pollatWn,ald tirougIlt suittG; ll4Ill'lotl !1Ihe:.same from! theJindiviidual stockholdeJl&' ,': j:\aIi been a ;t!).at the liabil,ity. Afthe , .tate 't(l contribute to pay tbe 'debts was no defense to 't:I:le action, since on J ; ihi,BdeloUli'thl'l.eu,tireright oitaotion V1l611ed iB thesurvivol'. "" '" ' '
ribt; of tlie , " . jUdgnlent agaInst the oorpor<ioh, 1/111 from the oreation of llh'&:ci6llHor whioh 'liuoh
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,enforce tbe,plprsqnalJia'bility" defendants stockpoldersof. COlp:paIlYJ a , ,bill,the ,debt accrued to, J.ohn ,8',. · .intestate, of whose plaintiff M:<;Willan, in, the ,years it, against qircuit Unit,ad. the northern dlSo"tric;Jt,qt.'jQhWj.iW.hich rernllills,un,sqtillfie,d to the of.$16,048, with and The defllP-:d,ap,ts, because the not in the stll;te ew York. #le demurrer.. 3.6 Fed. Rep, ,J;qhn New:berry ,WAS in the H.me of the apcru:illg, of him amJ the amqp,nt, of his liabilities to the ;del:l,t ,to: qid, oft4.e ,and thes,e argued. ';,['r:(il ' ) ' l ' , ,'.i. , beingal3tockpoldar, seeU),8'to ,sho1.l1d should Ilo:w).?e, la",!! ,1llI)der which *is;,spiUs brought, the are .to be;" nnciJwld lial:>lei" to , i th,e debts the COl"ffhec;:ourtl3 of to hold \lnder these tP aU, ,thecreditof!l.. Ohio 7 N. E.ltep.435.. liable upon p.is stock if had lived is not doubted, but that he ought to ll-nything on that account to this debt while he lived is not unde'rstood to be
.. J.." Tlj.is pi:I). ;O/liq" of,
tI:te to fixtheilIabihty of shareholders durmghls hfe, appears. ' If there' had been shena judgment; bim alone 'c;o111d not set off against this joint debt. Gray v. Rollo.. 18, Wall. 629; Beauregard; , v. 0111e;9,lU. S. 134."; nis esta1.emay be liable directly to the creditors,01' tQ"contl'jbl1tion; bilt that does not show that either of the persons entitled to this recovery is liable on account of his stock. In the pl.;tintiffs' brief, and in argument,he and MC,Millllnare mentionl'ld as havin/li been partners in the transaction; but in the bill they are set-'up as metelyj,oint creditors. , In either case, upon his death the debt agaihat the corporation survived to McMillan. 1 Chit. PI. 11; 2 Redf. Wills., 952. This survivorship 'So completely vested" 172; 'Wood, this oeoi.-iil the survivor that it could be joined in a suit with his own individual debts, and his individual liability could be set off against it. Slipperv. StidWne, 5 'ferm, 493; Frenchv. Andrade, 6 Term, 582; Wood, Colly. Partn. 1105.. Althoitgh, for some reasons notapparE'nt here, the administratrix in Michigan was joined in the suit against the corporation in Ohio, the right is in McMillan alone, and cannot be affected by any d1l1m llgainstthe estate of Newberry. If, on adjustment between that estate and McMillan, some share should appear to bel<>ng to the estate, the fact thllit anything would>Bobelong is not alleg'ed in these pleas. The' supposed liability of one of these plaintiffs, on which these pleas are' founded, does not appear to exist; and they show DO good reason ,why 1 the suit shOUld not proceed. , The plea rests upon the idea that the judgment created a new two plaintiffs, which is the only one in-; cause of action in favor of volved here. ,As a judgment, it is a new cause of action; but it is founded l upon>one<existing before. ' It was notagainstthesEdndividualdefend-; ants,and does not merge their lia:bilityfor security of the pre-existing· debt; but was merely a step neceSsary to fix that liability. " ndoea',not' appear to stand in the way orany discovel'y or relief which wouldotberwise' be' proper to enforce that liability. ' Pleas insuflicielit.
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(CircuU Court. N. D. IO'Wa, E. D. 'February 24,1890.)
L NATlON.ri. BANKS-UNLAWFUL
The perionalliability Of directors ofa natioual bank for violation of RevISti. U. B. § 5llO4,. by >4eclaring dividends j,n excess of net profits" and of fol' ' loaning to separate persons. firms, or corporations amounts exceeding one-tenth of the,capiml1stllok. cannot be enforced in an action at law. Unde,l' aeV. St. U,. S. §52i3\!, prOViding that, if the direct9rsof a national bank. shaUvillIate any of the pro'y'isiolUf of the tit,e relatfnjr to the orl\:anization and man- agement of ,banks. the' franchl.6es of the bank shaH be forfeited, 'suChVloliP.tion·. howjlver. to be.determined by': a proper court of the a suittAeI;ef-(ll': by 'the comptroller. and thatlIl" cases of 'such violation every dIrector participating
011 COMPTROLLER: (ro. AUTHOR1ZE SUIT·.