Groff v. National Bank of Commerce

52 N.W. 934, 50 Minn. 348, 1892 Minn. LEXIS 314

• Court: Supreme Court of Minnesota
• Decided: July 1, 1892
• Status: Published

Opinion

Collins, J.

The only defect or irregularity in the foreclosure proceedings in question of which plaintiff complains, and on which she rests her right to maintain this action, was that no copy of the notice of foreclosure sale, under a power contained in the mortgage, was served on her as required by law. 1878 G. S. ch. 81, § 5.

The title to the mortgaged premises was in the plaintiff, a married woman, and she resided thereon with her husband and children from some time before the mortgage was given until after the sale. A copy of the notice of the foreclosure sale, ample and complete in all respects, was personally handed to and left with the husband in due season in the house in which the parties dwelt,,as before stated; and of this proof was made by affidavit, which was recorded with the sheriff’s certificate and othei-papers concerning the foreclosure. The plaintiff introduced this affidavit in evidence, from which it appeared that the party who made the service, as well as the proof of the same for record, then regarded Mr. Groff, the husband, as the person in actual possession of the premises. The plaintiff also proved by parol the fact of this service upon her husband, who was a person of suitable age and discretion, including proof of the time, the manner, and the precise place of service, and rested her case; whereupon it was dismissed by the court. The appeal is from an order denying a new trial, and the order must be affirmed. The statute before referred to directs that a copy of the notice shall be served on the person in possession of the mortgaged premises if occupied, in like manner as a summons in a civil action. This provision refers merely to the mode of making the service. Kirkpatrick v. Lewis, 46 Minn. 164, (47 N. W. Rep. 970, and 48 N. W. Rep. 783.) A summons is properly served by personally delivering a copy thereof to a defendant, or by leaving a copy at the house of his usual abode, with some person of suitable age and discretion then resident therein. 1878 G. S. ch. 66, § 59. Personal service was made upon the proper person, if Mr. Groff was in possession. If he was not, and the possession was, under the circumstances, that of his wife, — as to this it is unnecessary for us to express an opinion, — the statute was strictly observed and complied with, because a copy of the notice was left at the house of the usual abode of Mrs. Groff, in the hands of her husband, a person of suitable age and discretion, then resident therein. It is the validity of the service made which controls and not what was thought or supposed concerning the same by the person who made it. This case is really covered by the opinion in Kirkpatrick v. Lewis, supra, although in that, reference was made to the fact that ■the copy of the notice was addressed to both Mr. and Mrs. Lewis, and the party who handed it to the latter, at the house of their usual abode, took pains to notify Mr. Lewis that it was also notice for his wife. This did not render the service any more complete and effectual, for the statute nowhere requires that the notice or the copy shall be addressed, or that the party serving the same shall advise the one who. actually receives it for whom it is intended. The plaintiff, by her proofs, established the defendant’s ‘claim that a copy of the notice of sale was served upon her.

(Opinion published 53 N. W. Rep. 934.)

Order affirmed.

Vanderburgh, J., did not sit.