Page:North Dakota Reports (vol. 2).pdf/322

 Action wo set aside certain mortgage foreclosure proceedings. Judgment for plaintiff. Defendants appeal. Reversed.

The opinion of the court was delivered by

Bartholomew, J. This was an action’ in equity to set aside and cancel certain foreclosure proceedings by advertisement. There was a decree for plaintiff, and defendants appeal. This action was evidently brought on the theory that the sale was absolutely void. Plaintiff does not ask an extension of the time for redemption, and does not tender the amount he admits to be que. He claims that the sale, and the proceedings thereunder, constituted a cloud upon his title, which he asks a court of equity to remove without conditions. There is nowhere in the record a suggestion of any damage resulting to him by reason of the alleged irregularities and omissions in the proceedings prior and subsequent to the sale. There are three findings of fact upon which the lower court rested the decree. They are in substance—First, that the mortgagee (defendant herein) appeared in said foreclosure proceedings by attorney, and that said attorney entirely failed to file the affidavit required by § 5429, Comp. Laws; second, “that the certificates of sale in said proceedings prescribed by § 5420 were not filed in the office of the register of deeds where said mortgage was recorded within 10 days after the date of said sale,” and not until 18 days had elapsed; and third, that in the foreclosure proceedings the mortgagor (plaintiff herein) was designated as John S. Johnson, while his true name is John L. Johnson.

If either of these grounds is sufficient to support the decree it must stand. The correctness of these findings is questioned, but we need not enter upon that branch of the case, as we think the findings insufficient to sustain the conclusions. Section 5429, Comp. Laws, reads: “The party foreclosing a mortgage by advertisement shall be entitled to his costs and disbursements out of the proceeds of the sale, and shall also be entitled, in addition, to any attorney’s fee agreed upon in the mortgage, upon the making, by the attorney, or, if more than one, by one of the attorneys, employed to foreclose, and fling with the register of deeds at or prior to the time of sale, of an affidavit