Bailey v. Hendrickson

Fisk, J.

(dissenting). I am compelled to dissent from the views of my associates as expressed in the opinion of the chief justice. The majority decision reverses the judgment of the district court, and confirms as valid a title obtained through a mortgage foreclosure by advertisement, and a sheriff’s deed to a quarter section of land concededly worth at least $4,000 for a paltry debt of about $50, and the costs of foreclosure. The purchaser at the sale and the person to whom the sheriff’s deed runs was the holder of the mortgage, and the rights, therefore, of an innocent purchaser are not involved. The principles announced in Hedlin v. Lee, 21 N. D. 495, 131 N. W. 390, are in the main analogous to the case at bar, and, in my opinion, should be controlling.

*521As I view it, the basic fallacy in appellant’s position, as well as in that of my associates, consists in the assumption that because, forsooth, the assignee of the mortgage and his attorneys in foreclosing such mortgage literally complied with the words of the statute relative to foreclosures by advertisement, that this is all that is “nominated in the bond,” and that the purchaser is entitled to his “pound of flesh.” While I entertain the highest regard for the attorneys who conducted this foreclosure, and do not for a moment question their good faith, and with all due respect for the opinions of my associates, I feel constrained to differ from them. A construction of our statute to the effect that a literal compliance with its provisions is all that is requisite to devest the mortgagor of his title and vest the same in the purchaser at a foreclosure sale is, I believe, unwarranted. I cannot subscribe to the doctrine that, because the letter of the statute is complied with, if the notice of foreclosure sale is published for the requisite period in “a newspaper of the county where the premises intended to be sold are situated,” that this alone suffices. The legislative purpose in requiring the publication of such a notice evidently was to attract, the attention of those persons who would be likely to become prospective bidders at the .sale; the end in view, of course, being to protect the rights of the interested persons by securing competitive bids at the sale, and thus avoiding a sacrifice of the property. I deny that the court is judicially legislating when it places a construction upon the statute which will tend to effectuate the evident legislative purpose as above stated.

The only notice given in this case was by publication in a weekly newspaper published at Lansford, a small village some 22 miles distant from the land, and having no circulation in the vicinity thereof. It might just as well have not been published at all in so far as being of any actual benefit is concerned. It was not a paper nearest the land, nor the most likely nor reasonably likely to accomplish the purpose intended by the legislature. I do not contend that any hard and fast rule should be laid down in such cases, nor do I contend that the sale should, for this reason alone, be set aside; but I do assert that where, as in this case, no bidders were present and the land was struck off to the mortgagee pursuant to a letter of instruction containing his bid for the paltry sum due him with costs, that it will be presumed that the power of sale was not exercised fairly and in good faith as the law requires. *522I venture the assertion that no one can properly contend, under the facts, that in equity and good conscience this plaintiff should be deprived of a right to redeem, even though the year for redemption under the statute has expired. The price was so grossly inadequate as to shock the conscience of the chancellor. The fact that plaintiff did not redeem within the year, coupled with the further facts that the defendant allowed him to pay the taxes on the land and the interest on the first mortgage, is, to my mind, conclusive of the fact that plaintiff did not know of the existence of such second mortgage, nor of the foreclosure sale. Of course if he gave the mortgage he is presumed to have had knowledge of it, but he evidently had overlooked or forgotten it. Another quite significant fact which should not be overlooked is that, so far as this record discloses, and no doubt the fact is, that no effort whatsoever was made by defendant to collect the amount of this second mortgage without foreclosure. While it is true, this was not legally necessary, yet it is what most people would do and what fair dealing with a fellow man demands, and for defendant not to do so is a circumstance showing a want of good faith on his part.

I shall not take the time nor the space required in order to review the authorities. I take it to be well settled that the powers of sales in mortgages must be exercised in the utmost good faith, and that under facts such as are here disclosed the court should and will diligently “scrutinize the conduct of the party placed by the law in a position where he possesses the power to sacrifice the interests of another in a manner which may defy detection,” and “should stand ready to afford relief on very slight evidences of unfair dealing, whether it be made necessary by moral turpitude or only by a mistaken estimate of others’ rights.” As very aptly said by the supreme court of South Dakota, “A court of equity in the exercise of its equitable powers will scrutinize with care sales made under powers of sale contained in a mortgage, and where there is great inadequacy of consideration it will be astute in extracting from the facts of the case sufficient to justify annulling the same.” Story v. Smith, 9 S. D. 137, 68 N. W. 198. See also Hedlin v. Lee, 21 N. D. 495, 131 N. W. 390.

In conclusion, I believe the trial court was fully justified in granting relief to plaintiff, and that its decision should be affirmed.