St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1886-12-18

E. C. Bennett F. G. Burke, Adelaide
Como. F. w. Bausman, as plaintiffs.
against Austin F. Kelly. defendant. Land to
the amount of S50O.00O in Oakland and Sill
yer Lake additions was involved in the suit.
The defendant claimed title under fore
closure sale bought up in 1870 by r. B.
GaluSha. OF st. Paul. This was held to
have been fraudulent by the plaintiffs be-
cause OF the death of Joseph Hall, of
Rochester. to whom the mortgage was
given. In making his decision, Judge
Young says.
CONCLUSIONS OF LAW.
That aside from the foreclosure proceedings
mentioned in the foregoing findings of fact. plant
ifs are the legal owners OF the property in ques-
ton. That the attempted foreclosure of said
mortgage was unauthorized and the proceedings
therein void, tor the reason that the mortgage
had died before the foreclosure was commenced
That said foreclosure beng void as such, the pur-
chaser at the foreclosure sale acquired title to
the mortgaged property, nor did such proceedings
operate TO assign to such purchaser any interest
in the mortgage. That from the record introduced
the foreclosure proceedings appear to have been
regular and such record therefore constituted
cloud upon the pla ntifs title to the property in
question, which they as the owners of Il prop
erty are entitled to have removed That plant
il 8 have not an adequate mady at law. If be-
cause of defendants possession the legal title
to the property could be determined in an
acton OF eJectment, plaintiffs could still be en-
titled to relief beyond the mere determination OF
the legal title. Plaintiffs being the owners of the
property they may proceed in equity to have their
title freed from the cloud created by the record
of the alleged foreclosure of mortgage. That the
evidence fails to disclose any such laches on the
part OF plaintiffs will defeat them in their &C.
ton. To constitute such laches it must appear
that the plaintiffs. Their grantOrs ancestors had
knowledge that said foreclosure void, or had
such Inio nation as ought to have put them upon
inquiry in respect to the sam and, having such
knowledge or information, slept upon th1r rights
or failed to institute proper inquiry to ascertain
the same to the prejudice of innocent purchasers.
That defendant, not appearing to have any inter-
est IN the debt secured by the mortgage in ques-
ton, and not standing IN the relation of MORTGAGE
In possession OF the property, plaintiffs are rot
Obliged in bringing this action to offer to pay sad
debt; that plaintiffs entitled to The judgment
and decree of this court adjudging and declaring
the foreclosure proceedings, referred to in the
findings or fact here, VOID. and for the relief
prayed for in the complaints the form OF judgment
to be settled Oy the court.
THE COURTS VIEWS.
Judge Young. in his memorandum of decision,
comes to the conclusion that in order to deter
mine the rights of the parties it is necessary to
resort to extrInsc proof ascertain if such fore
closure was in fact regular and legal. The mort
gage in question was executed and delivered by
Alexander Moore and wife to Joseph Hall, of
Rochester, N. Y, in June 1865. Joseph Hall died.
SO Tar as appears from the evlden ;e he did not
assign or part with the mortgage curing his lite
time. On Aug. "a, 1870, proceedings for the fore
closure by advertisement were commenced. and
the property sold by the sheriff. The notice or
the foreclosure purported to be signed by Joseph
Hall, mortgage, and R. b. Galusha attorney. The
foreclosure of mortgage by advertisement under
our statutes must be considered the act of the
mortgage or his assignee, as the case may be-
The notice of foreclosure required must either
directly or indirectly be given by the MORTGAGE
Now it is clear that
A DEAD MAN
can neither give notice nor direct the same to be
gwen by an attorney or an agent and it follows
that the notice of foreclosure of the mortgage
an absolute nullity. 1t is argued by the defend
ants counsel that although the proceedings may
be Invalid as foreclosure of the mortgage the
fact that the person who assumed to act as the
attorney for the mortgage in the foreclosure was
IN possession of the mortgage would be taken as
prlma fAcie evidence of title il such holder and
that the foreclosure proceedings would operate as
a legal assignment of the mortgage to him. i am |
unable TO see the logic of the argument The |
foreclosure of mortgage by advertisement is a |
statutory proceeding and unless the mortgage is |
by such proceedings foreclosed, If Irregularities
are found which viii defeat the foreclosure. then
the proceeding is void and of no force or effect |
for any purpose. Nor is the possession of sa d |
mortgage by r. B. Galus ha, under the existing |
circumstances. prima facie evidence of title to /
him. He did not exercise
ANY ACT OF OWNERSHIP
of the mortgage. He only assumed to act as at |
torney Tor the mortgage for the foreclosure of |
the same. The infrmity of the defendants title |
does not appear upon the rec I'd, nor can it be |
made to appear but by extensive proof. 1t is ar
gued BIZ the counsel for the defendant, so far as
the re ,ord shows, the purchaser at foreclosure
sale acquired a vail title to the property and it
therefore became the duty of any and all persons
claiming title adverse to such purchaser, to as
sert and by competent proof establish the same
without unreasonable delay. The delay on the
part of the plaintiff for fifteen years constitutes
gross laches, which should defeat the action
Whether such delay amounted to laches depends
on certain conditions. Laches is an unreasonable
delay on the part of person in ascertaining
known right. If one have no knowledge of exist
ing rights, and is guilty of no negligence in ascer-
tanning the same, it is not laches on his part TO
omit to assert his rights, even though innoceEl
persons have by reason of such delay suffered
damages. 1t appears that the property discred-
Is Now OF GREAT VALUE,
hat it has been plated into town lots which have
passed into the hands of innocent purchasers who
n examining the title to the property relied upon
he regularity of the foreclosure proceedings as
he same appear in the record, and that these
acts call for the exercise of judicial discretion of
tbs court for the protection of those persons.
Judicial discretion IN equity is not an arbitrary
power. To Justify its exercise in favor of one
party as against another the relative rights of
such parties must be considered. and it must APP
pear from facts establ shed that the equities of
the one in respect to The subject matter predom-
mates in his favor and against the other, and that
such condition is not the result alon o the mis-
fortune excusable inadvertence of the one party,
|
TaF cOntr .buted to the result. In other words
judicial discretion which is reposed in courts can |
De exercised only in accordance with established |
equitable rules. The equities of the defendant
are, under the ca. umstances great, but no such
omissions on the part of the plaintiffs appear as
viii justify the court in defeating them in their
egal rights by the
EXERCISE OF A JUDICIAL DISCRETION
or the relief of the defendant 1t is concluded !
~ the defendants counsel lat the plaintiffs, by
FLOWING the foreclosure of the mortgage to stand
unattached for so long time, amounted to an &C
Iuiesence on the part Of the legal owners in the
tile derived through the foreclosure. There is ,
10 evidence that the owners of the property by
ny act acquiesced or recognized the val dity of J
he foreclosure, or the title acquired thro OH it.
hey failed to attack such title or assert them
elves against it. Were there any evidences that
hey had any knowledge of ii, that would be a {
obstructive acQuiesence in the defendants anti
tile. But until it is known that such is the case
heir inactivity cannot be construed as acquies- T.,
nee. That the defendant may have the benefit !
f any questions favorable to himself upon appeal
is proper to say that considering the interest
involved and the questions of defendant and 9TH [
rs who have purchased the property rely ny as ,
hey were justified in doing, upon the apparent ,
egularity OF the foreclosure proceedings as the
anne are OF record on the basis of their title, l .
hink the calls Tor the
EXERCISE OF THE JUDICIAL DISCRETION :
the court for their protection. The evidence }
oes not show omission the part of the plain
us; any neg gence or affirmative acts of acqui-
sence in defendants title which ought TO bar
hem from their legal rights, and where equities s
re equal legal rights. l
GREAT LOOSENESS SHOWN ,
n the Snider.GrOss COntest--New !.
Laws and Smaller Precincts. :