MOULTON t1. SIDLE
(ctrCUit Oourt, D.
Fourth. mviswn., Novem,ber 18, 1899.)
MORT(UGES-FORECLOSURE-NOTJCE TO OCCUPANT.
B.ev. St. Minn. 1878, c. In. tit. 1, § 5, enact8 t!).8.t, w!:l6n a mortgage is forecl08ed b1 and advertisePilIll!-t in a newspaper, .. a copy of 8uch notice 8hall be served in like manner as summons' in civil actions in the district court.. * * * 'on the person inpossessiondt the mortgaged premiseS, if the same are actually occupied." .1IeUl, that wherllthere was no aotual occupancy, within the meaning of the law, but mere act80f ownership, the statutory notice was not required.
CONSTITUTES OCOUPKNCY. .
The pU1'Ohaser of land, mortgaged it to s.ecurebalanoe of purchase money, upon it, and planted some fruit trees. There was no dwelling upon the land, but across the 8treet was another tract owned by her, on which there was a house inhabited by laborer8, whp,:worked at interval8 on the l!lond in que8tion. HeW, th!lot there was JlO 8uch aotua.l. occupancy thereof !loS to require notice of foreclosure , ,proceedings to be given,und'er said statute, to the "per80n in p08session. n
In l!kIuity. Bill 'by Martha A. Moulton against Henry G. Sidle and others to redeetn mortgaged' 'premises foreclosed under a power of sale ;'Bill dismissed. contained in the Seldhn Bacon, for compllliinant. J. ·W. Lo:wreilce, for defendants. NEJ;SON',District JUdge. This suit was commenced December 30, 1890, and is brought toredeell'l a tract of land mortgaged in April, 1878, by the complainant and her husband, to the defendant H. G. Sidle. It iasot up as a defense that the mortgage was foreclosed under the power ofsale therein by advertisement in 1880, and the time for redemption nas long since expired; the complainant abandoned the property ever since the foreclosureof'the mortgage, and never claimed the pusses'sion or occupationofthe until it had largely increased in value.
The facts in this case are:
On April 1, 1878, H. G. Sidle owned the land. about 9 acres, Invblved in tbis controversy, and on that day he and his wife conveyed the same'to the eomplainant for.tbe consideration of $880, and at the same time the complainant and husband gave their joint and sev.eral promisso,ry Ilotes to the said H. G. Sidle for the purchase price,-one for$440, and interest thereon at 10 per cent. per annum until paid, Inaturing six months after date thereof; and the other for the sum of $'440, and interest thereon at the rate of 10 per cent. per annum until paid, maturing one year after the date thereof. These notes were payable at the First National Hank of Minneapolis, and were secured by a mortgage upon the property, executed by the complainant and her huspand, and duly recorded. Default was made in payment of the principal and interest by theco.mpl\\inant and her husband, and no taxes were paid upon the property by them, and pursuant to the statute, under the power of sale, the proceedings to foreclose the mortgage were taken as they appear in the defendants' Exhibit No.6. and a record thereof was duly made. The ;foreclbsure proceeding was commenced September 4,1880. No notice of the,ptoceeding was served on the complainant or any person. The property mortgaged was sol,d October 23, for the SUIll of $1,170, the arnountdue
MOULTON ·· SIDU.
on the mortgage, and interest, and the costs and expenses of the foreclosnre. The mortgagee, H. G. Sidle, was the purchaser at the sherUf'uale j and one year after the sale expired October 23, 1881, and no payment of any sum has ever been made. On January 5, 1882, H. G. Sidle and wife, claiming ownerShip, entered into a contract with Daniel B. Tompkins. and another contract with Clarence H. Tompkins, wherein they agreed to sell and convey the property to them for the considerat:on of $2,085. The Tompkins agreed to sell the property to Jobn T. Williamson. and, having discharged of record their contracts with Sidle, the latter and his wife, at their request, executed a contract whereby the property was agreed to 'be conveyed to Williamson for the consideration of $2,085. Williamson shortly afterwards died, and his estate was distributed by Ii. decree of the probate court of Hennepin county, and on August 1, 1887, pursuant to 8uch decree, H. G. Sidle and wife conveyed the property to Jesse E. Williamson and John Thayer Williamson, in the proportions in which they were entitled to the same, for the consideration named, of $2,085.' " " ' , , , At the time of the conveyance to Mrs. Moulton, April 1. 1878, she entered upon the laM and planted'trees for a nursery, and at the time the foreclosure proceedings were instituted ,there were about 50,000 smaH fruit trees grOWing, covering about one quarter' of the land. The nine aCl'es were fenced. but there was no dwelling house on the land. Across the street, on ,a cultivated tract cif 20 acres owned bytbe complainant, there was a dwelling used aa a boarding house for laborers, arid some of once ,or twiee a, #a6nth would work on this 9-acre tract, and during September, 1880, were working on the land several days; what particular days do not appear. On July 8,' 1881, the cOPlplainant abandoned her residence ,In Minneapolis, and ,went to Denv,er, Colo., where ehe lived until 1887, and then Went to Chicago,livIng in that city 22 monthe, when she went to live in Nasbville, Miils.,wbere she now resides, and is a cit17.en thereof. The complainant and her husband. after their removal to Colorado. and up to the time of the of this suit, visited MInneapolis. but paid no attention to t,he propetty, and paid no portion of the amount due thereon, principal or interest, nor any taxes, or claimed any interest in the land. At the timeof thesheriff'e 8ale, in the property was worth not to exceed $880. and had Increased so that at l.hetime of the hearIng it was worth $12,000 or 15,000. '
It is claimed that the foreclosure proceeding is void for the reason that no notice under the statute served upon Mrs. Moulton, the mortgagor and owner of the premises in 1880. Gen. St. Minn. 1878, c. 81, tit. 1, p.842, § 5, enacts that, when a mortgage is foreclosed by notice and advertisement in a newspaper under the statute, "in all cases, a copy of such notice shall be in like manner as summons in civil actions in the district court; [Gen. St. Minn. 1878, p. 715, § 59, sub. 4,] * * * on the person in possession of the mortgaged premises, if the same are actually occupied." The object of the statute may be, as stated, by counsel, to- give the' owner of the mortgaged premises notice of the steps that are taken to foreclose the mortgage. That may be true; and, if there is a person in pedis po88e8Bio, such notice, must be served, upon him, "not for his benefit solely, but for the owner, as well as 'otbers interested in the ,The evidence in this case fails to show that the mortgagedpremise& were actuallyocoupied, within the meaning of the law, SO as to entitle
the ,t() potiee. Acts :of: wit);lout actual occupancy, lJrenot'llllfficientto put in'ppera:tionthestatutory provision in regard to 'notice. ,The bill is with costs I and 6 decree accord' ) ;l' , ingly wiWbe'entered.
I ' .'(
& LoAN Asa'N.
cOurt, lV. D. Arkansas.
,':',' _-',i:: ":, ,,::
October 81, 1892l
T. subscribed for 600 shares of stock in the American Building &: Loan Association, havIng its business headCJ.uarters at Minneapolis, Minn. By his contract and bythe,by,laws of, the'alllQciatlon,he waa"topaY$B6Qpel", month'ills dues on the 600 shareS o,f .,stock. qJ;' or years.' U\e,Dt 0,1i On .!;liS,'S, ma"d,e atl,on, the twn to, advance 411n $80,000 Qn his'stddk', wtifch was done.'JjY tl'le contract he was tq pay 6 per cent. interesll:per"ll.htull,oll tbe'same. In, considering the question as to whether the \V$lI, a:usjU·iou. Qlneluuloier the laws·of ArkaDsM, payxoents to be·made by T. bEloonl!idered as intElf8st on tbe$30,OOO borrowed l anll not to computell smos sucb payments are Dot ma<}e for, the use 01 'thil money bOrr6w-ed. blltl'iiiorder to acquire an interest in the'nature of a partner,(, ship.'lnte:rest.iti"tlie proplft't;V of' theasllociatlon. ', "
,BUILDING A.ND LOAN
.' .' i )IBMBERS ON
2,'EQUITYT'-RELIBIl' AG:UNBTI UNOONSOIONA:M.B BTIPULATION....PBN..u.T1' oBLIQUIDATED : .,' I'" " ' " " " . '" , '
,. · .I.f &QO. raC.t.., eil:.1I,e, r:fD¥*d ad in. f,ra,ria,,: im.PQsit.ion, m. .. e,' orw.hen it WOrk.S a hardsb.1p,. ,01' Is harsh',upbll'Uparty to it: because it gives .the other 'party to it an un.due BdmtaK6, in a 8ull1 1;0 1 enfbrce.i't,1II7himadefendant comes into court and asks telief; .suob. reuef, a!!!· eli! in harmony with equity. and good conscience be hiP'l, wheut,be ,oontrsctls in the nat\lre of, 'apartnership, because defe!:llla:l,1t e:lreotpraYI!,11 disBolutloi,\ ,91, the the court will ascertall1tlietrue irltete!/ts)of the parties; and will make sue a ,decree as is just and.rigbtj.uponthe''gt!OUIld,that 8 couttof'eqnityWlIltltkeevery,one's act aocord. ing tp oQl1l\llIience;, lIJlQiwill"Jlot suJJ,e;r· undue advantag,e,tli> . be tall.:en al,the strict terU\$ qf orof,pos!:tive lind, will refuse ,to enforce thecdntract.. Or, it the e61i.'rt Clln consider the amount' named lnthe COntract as a penalty, rather than liquidated damages. wben tbel<paymlmt of money' iii the principal object of thecontractl and the amount named is only accessory thereto, lt will afford such relief as is Just and proper, when full oompensation can be readily ascertained.
'. ' ,
: When the Bum named' in lJII agreement is to secure the pllrformance of a collateral ,Object,.. t.,.o wit,ther p aYIA ent. 9fJ:llQney., all-!l is.the . andth,esl1m " . named1s only ana the real' dl;'mages 'Would btl dlsprop6rtlOnate to the Bum real damage81 canlle· readilY8scertained. then a,court of equity will cOnsider named as 8,peQ.alty. and:will afford such relief as . in equity and godd conscience is appropriate, considering the real injury sustained. 4·. B.&148. . ;,' . Conrtl\ of will not perw-it ;filt a sum, in a cllntract as by naming it as ,ucb,·.and prl;lv:ent court. fr0Ijl;cclDsidenng lt as a penalty. . . . .'
(Syllabus by the Court.)
In Equity. Suit. by J. L.Tilley and Vesta Tilley, his wife,against the, American Building'& Loan Assooiation, to cancel a bond and mortgage executedbyplaiutiffs I to defendant. Defendant filed an answer and a cross. bill askin,ga decree for the amount claimed to be due to it, and foreclosure of the mortgage. Decree for defendant for the amount advanced by it:i:m,the,:bolllibmd mortgage and foreclosure of the mortof the remaining'part of the contract. gage ,therefor"anw