Minnesota Supreme Court, 1896

Lynott v. Dickerman

Minnesota Supreme Court · Decided July 13, 1896 · Canty

65 Minn. 471; 67 N.W. 1143; 1896 Minn. LEXIS 306 (Minnesota Reports)

Counsel

G. J. Lomen, for appellant., Eckman & Stevenson, for respondent.

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Citation treatment has not been reviewed for this case. The notes below come from the citation graph and the Minnesota Revisor's amendment records, not from a review of how later courts treated this decision.

(as of 9/30/2026)

Last cited by a Minnesota appellate court in 1901, among the opinions in this site’s citation index.

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Cases that cite this one

4 later published cases cite this decision. The 3 that cite it most often are listed here.

St. Paul Fire & Marine Insurance v. Rock-Tenn Co. (8th Cir. 1986)
Farnsworth Loan & Realty Co. v. Commonwealth Title Insurance & Trust Co. (Minn. 1901)
Perkins v. Stewart (Minn. 1898)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

CANTY, J.

This is an appeal from an order overruling a demurrer to the complaint, on the ground that the same does not state a cause of action.

The complaint alleges that defendant, the assignee of a mortgage, foreclosed the same by advertisement, and bid in the samp at the sale for $964.20; that, in the notice of sale, he claimed as due, and there was due and owing, on the mortgage, the sum of $873.54, and no. more; that, out of the sum so bid, he retained the sum of $81.35, as costs and disbursements of the sale, “as necessarily and absolutely incurred and paid therein”; but that “the actual costs and disbursements of said sale absolutely paid were $23.24, and no more; and that the excess of $58.11 was illegally and improperly retained from the proceeds of said sale, for costs and disbursements thereof.” It is further alleged that the mortgagor, before the foreclosure sale, conveyed the premises to one Merchant; “that, before the commencement of this action, said Huntington W. Merchant, for a valuable consideration, sold, assigned, and transferred to this plaintiff the above cause of action against this defendant.” The complaint demands judgment under G. S. 1894, § 6052, for three times the sum of $58.11, or $174.33.

1. The title of Laws 1878, c. 53,2 in which this section originated (as section 24), is “An act providing for the foreclosure of mortgages on real estate by advertisement”; and it is contended by appellant that the act is unconstitutional, because the subject of this section, to wit, the penalty provided for, is not expressed in the title of the act. We cannot so hold. The subject of this section is the providing of a penalty for enforcing fidelity on the part of the mortgagee in the performance of his trust in foreclosing the mortgage, and accounting for the proceeds of the sale. Surely, this is germane to the subject mentioned in the title of the act.

2. The statute gives the penalty to the “mortgagor, his heirs or assigns.” Appellant contends that the “assigns” intended by the statute are only those who take a transfer or conveyance of .the equity of redemption, and that it was not the intention of the statute to make *473the naked right to recover the penalty assignable as a chose in action. Conceding, without deciding, that this is true, the right to recover the $58.11 wrongfully appropriated is assignable, and plaintiff is entitled to maintain the action to recover the same. Then, in any event, the demurrer was properly overruled.

Order affirmed.

G. S. 1894, §§ 6028-6052.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.