Bennett v. Brundage , 8 Minn. 432 ( 1863 )

By the Court.

Emmktt, C. J.

The only question involved in this record which the parties have submitted for our decision, is whether a mortgage sale under a power, advertised to take place on a particular day, can, prior to the day named in the notice, legally be postponed.

In ordinary cases it is 'to the interest of the mortgagor to have the sale deferred as long as possible, and it was in view of this fact doubtless that the statute is so liberal as to place the postponement almost entirely at the discretion of the mortgagee or his assigns. Sec. 7, Com. Stot., 644, authorizes the sale to be postponed from time to time, by merely inserting a notice of such postponement as soon as practicable in the newspaper in which the original advertisement was published, and continuing such publication until the day to which the sale is postponed, &c.

There is nothing in the language of this section making it imperative on the party to wait until the first named day shall arrive. Nothing that clearly indicates when such postponement must be made. Nor is there anything in the nature or object of the transaction itself which can render such a course necessary or even desirable. On the contrary, as the delay occasioned by the postponement, is generally to the advantage of the mortgagor, at least in so far as he is thereby given longer time within which to pay off the mortgage, and thus prevent a sale from taking place ; so, the sooner he is advised that the sale has been so deferred, the more likely is he to profit by the delay. But if the postponement cannot be made until the day on which the sale was to take place, according to the original notice, then, although such postponement may have been determined on, or rendered necessary by events transpiring immediately after the first publication of the original notice, the mortgagor may lose all benefit to be derived from an early knowledge of the fact that the sale is to be deferred, which otherwise he might have learned and profited by.

We learn from the cases to which we have been referred by the counsel for the Appellant, that a postponement before the day named in the original notice, is sanctioned by the courts of the State of New York, under a statute identical with our own in ibis respect; and we believe the practice to be correct in principle and warranted by the statute.

The order overruling or denying the motion for a new trial is reversed and a new trial granted. •