St. Paul daily globe., 1894-06-30
RECEIVERS THREE TIMES
7RE xMoGyT eF THE COSTS IN A
M0RfG6CE SUIT
LOWER COURT is REVERSED.

LOWER COURT is REVERSED.
Supreme Court Sustains the Law
of 1878, Giving the Mortga gor
Times the Actual Costs and
Disbursements in the Fore
closure Proceeding.
Associate Justice Canty wrote the
opinion OF the supreme court reversin <
the decision of the lower court in the
Ease of Hobe VS.. Swift, which bears
directly upon the law of 1878 re la:ing
10 oyercharges IN mortgage foreclo-
sures. that law affording mortgagor
the right to recover by suit three times
the amount charged against his prop
erty as costs and disbursements, upon
proof that such charges are fiction.
not having been actually paid. Swift
held mortgage upon property OF Hobe.
In foreclosure proceedings Sl01.73 was
charged as "costs and disbursements
among these items being $50 for attor-
ney's fee, $40 for advertising the sale
n newspaper. Hobe brought suit
alleging that instead of the costs. etc.,
being Sl07.75. there was but S2S actually
paid out. The district court decided in
favor of Swift. but the supreme court
finds the equity Is with Hobe. Judge
Canty's decision derives greater Inter-
EST because of its bearing upon the law
providing for and prescribing the meth
Bd of publication of mortgage fOrecl0.
Sure notices. Syllabus:
Tharald o. Hohe. appellant vs.. Rodney r.
swift, respondent. Judgment reversed.
CAVITY, j.
Sec 81, ch. 20. G. S. 1873. construed,
and the meaning of folio, ems and solid
matter as therein used construed.
Where notice was duly served on
the opposite party to produce at the
trial the pro of publication in his
possession, containing printed notice
cut from the columns of The newspaper
and on the uiai lie refused to produce 1t:
Held, evidence of the number of ems
In the notice as measured in another
copy of the paper not produced i'll court
being material, was competent.
Held, under See. "a, ch. 81, q. s. 1878.
uIOllSdSOi 10 GutillSu ~ IcCONcl ny
action of The holder of the mortgage,
foreclosing the same, three times the
amount of any costs and disbursements
OF foreclosure charged as paid which
have not in fact been paid. or have not
been absolutely paid without any reser-
vatinn to the MORTGAGE of any ''com-
mission" or advantage whatever, either
directly or indirectly. except payment
of The particular debt.
Held further. IN such an action the
burden of prDof is on the plaintiff to
SHOW now much the amount charged i'll
excess OF the amount paid by the de-
feiiLant for such costs and dlsburse-
mentS, or else to show how much the
amount iarged exceeds what is reason
able OF eX, eds the amount allowed 10y
law, whereupon the burden will be on
the defendant TO show how much was
actually paid. and If the amount so paid
exceeds the amount allowed by law,
that it was paid absolutely and in good
faith.
Held further, under section of said
chapter, the forecioSing mortgagee can
not charge the costs OF pUstpourment
at his request of the foreclosure sale 10
the mortgagur. and ii he does So ne is
liable in such action for treble the
amount thereof.
Held in such an action the good faith
OF the defendant is not a defense against
the recovery of treble damages unless
the sums charged were absolutely paid
on items which If not excessive in
amount should as between the mort
gagor-a and mortgage be deducted from
the proceeds OF the Sale.
Held further, even though such sums
were absolutely paid in good faith on
sucn items in excess of the amount
allowed by law, the plaintiff can recover
such excess, but not treble the amount
thereof. in.the same action ii the facts
are sufficiently alleged.
The court reyerses the districl court
OF st. Louis county i'll plain case
where contractor assumed 10 have a
standing in court, all illusion the su-
preme court di>pels. Syllabus:
Alexander Sang and David Sang respond
enl. VS.. The City Of Duluth, appellant Or
der reversed. CAVITY j.
Where village made contract to
grade and improve a street within its
limits, to part of which street it had
no right of way. and had no color of
right or apparent right to such part,
ana the contractor performed as to the
rest of the street, but not as to such
part. being prevented by reason of the
want of auch right of way;
Held as to such part of the street the
contract was ultra wires, and the con-
tractor was not entitled to recover dam.
ages for breach of the contract in being
Sc prevented from performing the same.
This decision removes the cloud upon
title i'll real estate deal, affirming the
finding of the court below. Syllabus:
Nary E. Sherwood. respondent, VS.. John
o'Brien ana Anna o'Brien. his wife. ep-
pellants. Order affirmed. CAVITY. j.
Where A made an agreement with B
to procure G to convey to B a certain
tract of land. If G procures title; if G
does not procure title, then to return
the part of the purchase money received
by A from B, and B subsequently as
signed this contract to d: afterWard G
procured title. and for the purpose of
confirming and in fulfiIlment and in
execution of the A contract, entered
into contract with B to convey the
same land to him on the same terms,
and apply the payment already paid to
A as the first payment on the G con-
tract; B afterward paid all the purchase
price to e and received a conveyance.
1t lid not appear that A was the agent
of Z or had amy contract relation with
Z concerning the land, and it did not
appear that when the c contract was
made e did not know that B had as
signed the A contract to u.
Held, b held the title obtained under
the contract in trust for D,and d was
entitled to conveyance of it on reim-
bursting B.
DISTRICT COURT.
Z. GotZlan d Co. have garnished funds