Mogan v. Carter , 54 Minn. 141 ( 1893 )

Gilfillan, C. J.

Assuming that the foreclosure of the mortgage by Newell was invalid, it was so by reason of the defect in the notice or publication thereof, — that it was not published for a sufficient period after he had a right to foreclose under the power by the record of the assignment of the mortgage to him. The case, therefore, is similar to Russell v. H. C. Akeley Lumber Co., 45 Minn. 376, (48 N. W. Rep. 3,) and comes within the provisions of Laws 1883, ch. 112, which, as said in that case, was designed for just such'and similar cases. Either Mayo, the mortgagor, or the judgment creditors in the judgment against Mm, under which the defendants claim, could have brought suit to set aside the invalid sale at any time after that net passed, and before five years from the date of the sale expired, and by failure to do so they lost their right to have the sale declared invalid. Upon the lapse of that time it became unassailable.

(Opinion published 55 N. W. Rep. 1117.)

Judgment affirmed.