By the Gowt —
FlANdeau, J.
— The object of this action is to set aside the sale made under the mortgage, for several reasons.
1st. That too much is claimed in the notice to be due.
2d. That the notice has no date.
3d. That the postponment of the sale was irregular.
[172]*1724th. That the power of sale contained in the mortgage running to the mortgagee, he could not become the purchaser of the land under the power.
The answer sets out a state of facts showing that the amount claimed was not excessive ; alleges the regularity of the postponement, and shows the sale to have been made by the Sheriff of the County. It also alleges that the Plaintiff had, previous to the commencement of the action, conveyed to one Alexander Ramsey the lands mentioned in the mortgage, and all his “ right, title, interest and estate, and equity of redemption” in them, claiming that he had no interest after such sale which would entitle him to maintain this action.
The reply reiterates the charges in the complaint as to the excess claimed; also those as to the regularity of the postponement ; and as to the sale of his interest in the lands he admits it, but avers that the deeds contained covenants that he was well seized in fee of the lands, and had good right to convey the same, against incumbrances, and for quiet enjoyment, etc.
Judgment was given for the Defendant upon the pleadings.
The mortgage was given to secure three promissory notes, one for $15,000.00, and two for $1,350.00, each, all dated on the 29th day of May, 1858. The note for $15,000.00 was for the principal sum loaned, and was to run one year ; the other two were for the interest and were made payable in six and twelve months ; none of the notes drew interest, but all contained a stipulation that if not paid at maturity, they should draw interest at the rate of three per cent, per month.
The note falling due in six months was paid. The other two were not paid. They matured on the first day of June, 1859. The mortgagee commenced his foreclosure on the 7th day of July, 1859, one month and seven days after the due date of the notes. His notice claimed that there was due on the mortgage the sum of $16,870.00 at the date of the notice. If the mortgagee computed the interest from the due date of the notes at three per cent, per month until the commencement of the foreclosure, the sum would be $16,954.95, together with the exchange on New York which was stipulated for. If the computation was made at the rate of seven per [173]*173cent, per annum after tbe notes fell due, tbe sum would be $16,467.62, and exchange. Tbe Plaintiff insists that there was but tbe sum of $16,385.00 due, which sum be probably arrives at by deducting all interest during tbe period from tbe date of tbe notes until he actually received tbe money from Merriam, and computing the interest after their maturity at seven per cent, per annum.
Tbe Plaintiff relies upon the case of Annan vs. Spencer, 4 M. R., 542, to sustain him upon this point. In that case the amount due upon tbe note was $964.62, and tbe .amount claimed in tbe notice was $1,606.60. "We set aside tbe sale on tbe ground that such a false claim would necessarily have the effect of deterring bidders, and was a fraud upon tbe mortgagor. It was however on account of tbe greatness of tbe excess claimed, it being about sixty-ñve per cent, more than tbe note called for. In tbe opinion delivered by tbe Court in that case this qualifying language occurs.
“ We do not bold that it is absolutely necessary to state tbe exact amount legally due; for a party under a místate oí law or fact, may honestly claim more than by law be would be entitled to, and if any other party is not shown to be prejudiced thereby, tbe sale should not be disturbed. Tbe mortgagee may be ignorant of, or contest certain alleged payments. He may estimate tbe amount according to tbe strict terms of tbe contract, or may err simply in a computation of tbe interest ; and if under such circumstances he claims more than be could legally recover, it does not necessarily vitiate tbe sale. Perhaps any amount within tbe terms of tbe contract may in good faith be claimed without affecting tbe legality of tbe notice. But we do bold that a party cannot arbitrarily or wantonly claim in bis notice a sum which neither tbe terms of tbe contract, nor any legitimate calculation based thereon will justify.”
In this case according to tbe strict terms of tbe notes, a greater sum could have been claimed than was demanded, and in no aspect of tbe case was tbe excess when compared with tbe sum actually due, of sufficient magnitude to have influenced purchasers one way or the other. It is our opinion therefore that tbe sale should not be disturbed for this reason. [174]*174There are other and more appropriate means of redress where a mortgagor is injured by such a transaction. Bidwell vs. Whitney, 4 M. R., 89.
The statute (Comp. Stat.,p. 644, §5,) does not require the notice of foreclosure to be dated. The only part of the section from which such a requirement can be inferred, is the third subdivision, which declares that the notice shall specify “the amount claimed to be due thereon at the date of the notice.” The date of a notice does not mean exclusively the note appended to it stating its date, which although is properly called the date, is, strictly speaking, the evidence of it. It is also the actual time' of its issuance whether expressed or not. Therefore the mere omission to inscribe the date upon the notice can in no way effect its validity, so long as the amount claimed is correct at the true date. The cdunsel for the Defendant claims that the true date of the notice is the time of its first appearance by publication, because before that time it is not a notice at all, but simply a silent writing, which may, or may not become a notice accordingly as it is published or suppressed. Our view is, that when the mortgagee writes the date upon the face of the notice, that fact will control, and the amount claimed must correspond with the time so stated; but when no evidence of the date appears upon the face of the notice, the time of its first publication is its date. This rule by removing all doubt concerning the date, practically satisfies the demands of the statute.
It is a sufficient answer to the charge that the postponment was irregular, that the complaint does not state any facts showing it to be irregular. The averment in the complaint is simply that the sale did not take place at the time specified in the notice, and that no postponment of the sale was ever duly given. No fact is alleged upon which issue can be taken.
The power under which the land was sold, was contained in the mortgage, aDd ran to the mortgagee. It is contended that under such a power the mortgagee could not become the purchaser. The validity of such powers was for a long time doubted even, where they did not run to the mortgagee; but it is believed that all such doubts are now removed, and the practice of inserting such powers in mortgages has become [175]*175very general, and was authorized in many of the States and in England long before the adoption of the statutes of Minnesota in 1851; 1 Hilliard on Mortgages, 118 to 128, 1st Ed.
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By the Gowt —
FlANdeau, J.
— The object of this action is to set aside the sale made under the mortgage, for several reasons.
1st. That too much is claimed in the notice to be due.
2d. That the notice has no date.
3d. That the postponment of the sale was irregular.
[172]*1724th. That the power of sale contained in the mortgage running to the mortgagee, he could not become the purchaser of the land under the power.
The answer sets out a state of facts showing that the amount claimed was not excessive ; alleges the regularity of the postponement, and shows the sale to have been made by the Sheriff of the County. It also alleges that the Plaintiff had, previous to the commencement of the action, conveyed to one Alexander Ramsey the lands mentioned in the mortgage, and all his “ right, title, interest and estate, and equity of redemption” in them, claiming that he had no interest after such sale which would entitle him to maintain this action.
The reply reiterates the charges in the complaint as to the excess claimed; also those as to the regularity of the postponement ; and as to the sale of his interest in the lands he admits it, but avers that the deeds contained covenants that he was well seized in fee of the lands, and had good right to convey the same, against incumbrances, and for quiet enjoyment, etc.
Judgment was given for the Defendant upon the pleadings.
The mortgage was given to secure three promissory notes, one for $15,000.00, and two for $1,350.00, each, all dated on the 29th day of May, 1858. The note for $15,000.00 was for the principal sum loaned, and was to run one year ; the other two were for the interest and were made payable in six and twelve months ; none of the notes drew interest, but all contained a stipulation that if not paid at maturity, they should draw interest at the rate of three per cent, per month.
The note falling due in six months was paid. The other two were not paid. They matured on the first day of June, 1859. The mortgagee commenced his foreclosure on the 7th day of July, 1859, one month and seven days after the due date of the notes. His notice claimed that there was due on the mortgage the sum of $16,870.00 at the date of the notice. If the mortgagee computed the interest from the due date of the notes at three per cent, per month until the commencement of the foreclosure, the sum would be $16,954.95, together with the exchange on New York which was stipulated for. If the computation was made at the rate of seven per [173]*173cent, per annum after tbe notes fell due, tbe sum would be $16,467.62, and exchange. Tbe Plaintiff insists that there was but tbe sum of $16,385.00 due, which sum be probably arrives at by deducting all interest during tbe period from tbe date of tbe notes until he actually received tbe money from Merriam, and computing the interest after their maturity at seven per cent, per annum.
Tbe Plaintiff relies upon the case of Annan vs. Spencer, 4 M. R., 542, to sustain him upon this point. In that case the amount due upon tbe note was $964.62, and tbe .amount claimed in tbe notice was $1,606.60. "We set aside tbe sale on tbe ground that such a false claim would necessarily have the effect of deterring bidders, and was a fraud upon tbe mortgagor. It was however on account of tbe greatness of tbe excess claimed, it being about sixty-ñve per cent, more than tbe note called for. In tbe opinion delivered by tbe Court in that case this qualifying language occurs.
“ We do not bold that it is absolutely necessary to state tbe exact amount legally due; for a party under a místate oí law or fact, may honestly claim more than by law be would be entitled to, and if any other party is not shown to be prejudiced thereby, tbe sale should not be disturbed. Tbe mortgagee may be ignorant of, or contest certain alleged payments. He may estimate tbe amount according to tbe strict terms of tbe contract, or may err simply in a computation of tbe interest ; and if under such circumstances he claims more than be could legally recover, it does not necessarily vitiate tbe sale. Perhaps any amount within tbe terms of tbe contract may in good faith be claimed without affecting tbe legality of tbe notice. But we do bold that a party cannot arbitrarily or wantonly claim in bis notice a sum which neither tbe terms of tbe contract, nor any legitimate calculation based thereon will justify.”
In this case according to tbe strict terms of tbe notes, a greater sum could have been claimed than was demanded, and in no aspect of tbe case was tbe excess when compared with tbe sum actually due, of sufficient magnitude to have influenced purchasers one way or the other. It is our opinion therefore that tbe sale should not be disturbed for this reason. [174]*174There are other and more appropriate means of redress where a mortgagor is injured by such a transaction. Bidwell vs. Whitney, 4 M. R., 89.
The statute (Comp. Stat.,p. 644, §5,) does not require the notice of foreclosure to be dated. The only part of the section from which such a requirement can be inferred, is the third subdivision, which declares that the notice shall specify “the amount claimed to be due thereon at the date of the notice.” The date of a notice does not mean exclusively the note appended to it stating its date, which although is properly called the date, is, strictly speaking, the evidence of it. It is also the actual time' of its issuance whether expressed or not. Therefore the mere omission to inscribe the date upon the notice can in no way effect its validity, so long as the amount claimed is correct at the true date. The cdunsel for the Defendant claims that the true date of the notice is the time of its first appearance by publication, because before that time it is not a notice at all, but simply a silent writing, which may, or may not become a notice accordingly as it is published or suppressed. Our view is, that when the mortgagee writes the date upon the face of the notice, that fact will control, and the amount claimed must correspond with the time so stated; but when no evidence of the date appears upon the face of the notice, the time of its first publication is its date. This rule by removing all doubt concerning the date, practically satisfies the demands of the statute.
It is a sufficient answer to the charge that the postponment was irregular, that the complaint does not state any facts showing it to be irregular. The averment in the complaint is simply that the sale did not take place at the time specified in the notice, and that no postponment of the sale was ever duly given. No fact is alleged upon which issue can be taken.
The power under which the land was sold, was contained in the mortgage, aDd ran to the mortgagee. It is contended that under such a power the mortgagee could not become the purchaser. The validity of such powers was for a long time doubted even, where they did not run to the mortgagee; but it is believed that all such doubts are now removed, and the practice of inserting such powers in mortgages has become [175]*175very general, and was authorized in many of the States and in England long before the adoption of the statutes of Minnesota in 1851; 1 Hilliard on Mortgages, 118 to 128, 1st Ed. A mortgagee, with a power to sell the estate on default being made in the condition of the mortgage, stands in the relation of a trustee of the mortgagor’s rights, and in the absence of statutory authority would not be permitted to become himself a purchaser of the estate, under the very familiar principle that a trustee is not allowed to purchase the property of his cestui que trust. Baldwin vs. Allison, 4 M. R., 25, 30, and cases there cited. There can be very little doubt that the legislature has the power to change this rule in all, or in particular cases, and it is for us to determine whether they have done so in regard to powers of sale in mortgages where the power is vested in the mortgagee.
The statute of this State, (Comp. Stats., 643, Ch. 75,) it is true, does not speak of a power of sale running to the mortgagee in terms, but generally of mortgages, that contain powers of sale (Sec. 1); and where it provides the time, place and manner of the sale (Sec. 6), it declares that the sale shall be made “by the person appointed for that purpose in the mortgage, or by the Sheriff.” Express power is conferred upon the mortgagee to become the purchaser at a sale made under this statute (Sec. 9), and the legal difficulty which would arise in the case of the mortgagee conveying to himself, is obviated by Section 19, which provides that in such cases the affidavit, &c., shall have the same effect as a deed from the mortgagee upon a sale to a third person. If the power to sell was made to the sheriff or any third person, and should be executed by them in pursuance of the statute, no doubt could be raised of the right of the mortgagee to purchase at the sale, because the relationship of trustee and cest/ai que trust would not exist, and the statute expressly authorizes a purchase in such case by the mortgagee. Should the power run to the mortgagee, and the sale be made by him in person, an agent selected by him acting as auctioneer, it would be equally clear that he could not become the purchaser, because the characters of purchaser and seller are utterly incompatible in the same person at the same time. We think the framers of the statute in [176]*176selecting tbe Sheriff, a responsible public officer to act, bad in view tbe very case of tbe power being conferred upon the mortgagee, and designed to take from bim tbe right to select bis own agent to make tbe sale, when be wished to purchase, and thus to prevent any chance of collusion and undue advantage. The Sheriff cannot be said to be tbe agent of the mortgagee in making tbe sale, because tbe latter has no choice in bis selection. He is chosen by tbe statute, and is tbe agent of tbe law as much as when be makes a sale on execution. The Sheriff being entirely indifferent, and acting under tbe obligation of bis official oath and bond, there is no presumption of p'rtiality one way or tbe other, and none of those elements that cast suspicion upon a purchase of trust property by a trustee. It would be doing violence to tbe intention of the legislature to suppose that they were only granting tbe privilege to purchase to tbe mortgagee, when tbe power to sell was vested in some other person, when tbe almost universal practice was tbe other way at tbe time of tbe passage of tbe act; tbe intention to so restrict tbe right to purchase by the mortgagee, would at this day require very clear and satisfactory evidence before a court would be justified in disturbing half tbe titles in tbe State, as a decision of that character would have tbe effect of doing. We think everything tends to tbe opposite conclusion however, and so bold.
As we see no ground upon which to interfere with tbe sale, it becomes unnecessary to discuss tbe question as to whether tbe Plaintiff has any interest in tbe lands, upon which be can maintain this action.
Tbe judgment is affirmed.