such mortgage to one Salmon I. Beecher, which assignment was duly recorded, and thereafter Salmon I. Beecher assigned said mortgage to George S. Barnes, which assignment was also duly recorded, and said Barnes assigned to Elizabeth McKnight, and which last assignment was also recorded, and said Elizabeth McKnight proceeded to foreclose by advertisement, held, that the record did not show that the legal title to said mortgage had ever passed from “Beecher & Dean,” and such foreclosure was void on the face of the record.
Templeton, J., dissenting.
(Opinion Filed, June 3, 1890.)
APPEAL from district court, Cass county; Hon. William B. McConnell, Judge.
Action in equity to cancel of record and declare illegal and void a certain proceeding by advertisement for the foreclosure of a mortgage on real estate as constituting a cloud upon plaintiffs’ title. Decree for plaintiff granting the relief prayed, and defendants appeal.
Messrs. Francis and Southard (A. C. Davis of counsel), for appellants, on the points ruled by the court, cited: Civil Code, §§ 2011 and 2012; Cox v. Clift, 2 N. Y. 118; Look v. Kenney, 128 Mass. 284; Hayes v. Frey, 11 N. W. Rep. 695; Holcombe v. Richards, 35 id. 714; Miller v. Clark, 23 id. 35; Lee v. Clary, 38 Mich. 223; Niles v. Ransford, 1 Mich. 338; Morrison v. Mendenhall, 18 Minn. 232.
Messrs. Ball and Smith, for the respondent, argued that inasmuch as by § 612 of the Code of Civil Procedure certain affidavits are made prima facie evidence of the facts therein contained, this case was one for the interference of equity; a deed issued on such a foreclosure proceeding would be prima facie good, and where tax deeds are made prima facie evidence of the regularity of the assessment, etc., equity will in proper case direct the cancellation of the tax certificate: Weller v. St. Paul, 5 Minn. 95.
Bartholomew, J. There is, in this case, no controversy as to the facts, both parties accepting the findings of the court. These are, in substance, that plaintiff is the owner of the land in controversy subject to a.certain mortgage dated September 14,
