The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1896-10-27
CONDEMNS THE PRACTICE.
Judge Kelly Thinks Certain Legal
Proceedings Should Be Con-


demned
Suits against the sheriffs of Ramsey
and Hennepin counties to recover sup
posed SURPRISES after sale of lands I'M
der foreclosure proceedings have null
tiplied of late and the number brought
is very large. ~
Judge Kelly filed decision in one Of
these suits yesterday, Charles c..
Burns against Sheriff Chapel, rendering
a decision for the sheriff. The formal
order is that the plaintiff take nothing,
and that the defendant have judgment
for costs:
This is suit against the sheriff to recover
$34991 for an alleged balance of money in
his hands after a sale in foreclosure by ad-
vertisement, under a mortgage of real es-
tate made by James Dillon to j. M. Arm
strong. At the sale the mortgage bought in
the mortgaged premises for the exact amount
then due on the mortgage debt, together with
certain taxes paid on the premises and the
expenses and costs of sale allowed by law.
The published notice of sale, by an error
in computing the interest unpaid on the
mortgage. did not correctly state the amount
then really due.
The plaintiff contends that the amount
named in this notice is conclusive on the
sheriff. In this he must be mistaken. The
sheriff's only connection with the matter is
to act as the auctioneer appointed by law.
ne uOeS not give the nOC1ce, and IS In no way
responsible for errors omissions in it.
Whether 1t would be conclusive in a suit
OF this character on the MORTGAGE who did
give the notice, it is not necessary to decide
put am informed by my associate, Judge
GUS, that he has held it is not conclusive
even on the mortgage. If it is not on the
mortgage it is certainly not upon the sheriff.
!. In this state it has been always held that
the mortgagor or his assigns NAV recover
me amount bid although claimed in the no.
tlce, IN exces OF the amount due on the mort
gage, according to its TERMS
Yet in suit to recover an alleged excess
twhere none really exists, it cannot be held
conclusive on the mortgage. This by the
c c;ty OF the reasoning in the cases above
cited and from the ordinary principles of JUS
tice. me element of damage lies in selling
the land for more than is actually due. If it
Is bid in for the sum really due, there is no
excess bid or named, and no damage to the
mortgagor, though less be claimed in the no.
tice.
With reference to the sheriff's alleged la
bility, it was held In Bailey VS.. Merritt
supra, that he Is not a necessary party to a
suit against the mortgage, where no money
is actually paid at the sale. The court says:
The sheriff is the officer appointed by law to
make the sale. and see the same is fairly con-
Quoted, and may be said to act as the agent
OF both parties for that purpose, but his du-
ties and responsibilities to the respective par
ties are limited, and cannot be extended by
implication beyond the limits prescribed by
the language of the statute or the ends to be
subserved from his appointment"
Although 1t was not shown on the trial. it
still remaining a matter of common knowl-
edge to lawyers and judges that ordinarily
upon mortgage foreclosure sales. where the
mortgage bids in the land, no money what
ever passes through the sheriff's hands. He
simply sells the land, executes the certificate
and receives his fee, Ia small sum- for his
service.
These attempts TO pirate the sheriffs for the
errors Or even wrongs of other men, now car
ried on by some people, should be frowned
upon by all men who love justice and hate
iniquity, because they are barefaced at
tempts, under legal technicality, to make
courts of justice instruments Of injustice and
wrong.