Dalzell v. Fahse ( 1923 )

Dibell, J.

Action to set aside a mortgage foreclosure sale by advertisement. There was judgment for the defendant and the plaintiff appeals.

There is no settled case. The only question is upon the sufficiency of the notice of foreclosure sale in respect of the statements of the amount claimed to be due. The plaintiff is the owner unless the foreclosure has divested his title.

The mortgage was dated March 1, 1920, and was for $16,080. Default was made in the coupon which became due on March 1, 1921. On April 2, 1921, the mortgagee elected to declare the whole amount secured by the mortgage due. The record does not show whether the mortgage gave the mortgagee the right to accelerate the maturity of the principal at Ms election upon default in the payment of interest. Notice of sale was published, commencing April 2, 1921, was served upon tbe tben owners in possession, and tbe sale was made on May 20, 1921.

Tbe statute, G-. S. 1913, § 8112, requires tbe notice to specify: (1) Tbe name of tbe mortgagor and mortgagee and tbe assigned, if any; (2) tbe date of tbe mortgage, and when and where recorded; .(3) “tbe amount claimed to be due tbereon, and taxes, if any, paid by tbe mortgagee at tbe date of tbe notice;” (4) a description of tbe mortgaged premises; and (5) tbe time and place of sale.

Tbe mortgagee used a common form of notice, more lengthy than need be, stating tbe existence of some of tbe conditions essential to a foreclosure and some of tbe rights attendant tbereon, but not necessary of specification in tbe notice because not required by be statute. Tbe notice stated relative to tbe amount due as follows:

“Default has been made in tbe payment of interest which is claimed to be due and is due at tbe date of this notice upon a certain mortgage for $16,080,” etc.

Tben followed, along with some unnecessary recitals, tbe names of tbe mortgagors and tbe mortgagee, tbe date and place of record of tbe mortgage, a description of tbe property mortgaged-, and notice of tbe time and place of sale. Coupled with tbe notice of the time and place was tbe statement that tbe sale would be made

“to pay said debt of $16,080.00 and interest tbereon at tbe rate of six per cent per annum from March 1st, 1920, together with interest on $964.80 of said overdue interest from March 1st, 1921, together with tbe additional sum of $200.00 attorney’s fees,” etc.

These are tbe only references to tbe amount claimed to be due at tbe date of tbe notice. Tbe procedure provided by the statute for tbe divestiture of title by foreclosure must be substantially followed. Tbe notice must state tbe five things which tbe statute makes essential, and it need not state others. Tbe legislature has chosen to require these five statements to be made and tbe party foreclosing must observe them, if be wishes to foreclose by advertisement, because tbe legislature has fixed tbe terms upon which be may foreclose. Tbe court is of tbe opinion, tbe writer not agreeing, that tbe two quoted portions of tbe notice state with sufficient definiteness tbe amount due on tbe mortgage at tbe date of tbe notice and that tbe notice fulfils tbe requirements of tbe statute.

Judgment affirmed.