duly recorded in the county where such mortgaged premises are situated.” The statutes of Wisconsin, Michigan, and Minnesota are, in effect, precisely like ourown. Hayes v. Frey, (Wis.) 11 N. W. Rep. 695; Miller v. Clark, (Mich,) 23 N. W. Rep. 35; Lee v. Clary, 38 Mich. 223; and Holcombe v. Richards, (Minn.) 35 N. W. Rep. 714, cited by appellant, are cases upholding foreclosures by advertisement made by foreign executors or administrators when no evidence of their appointment was of record in the county where the mortgaged premises were situated. The opinions go upon the ground that the executor or administrator holds the legal title to the mortgage, not by assignment, but by operation of the law, and the power of sale extends to such representatives by express words contained in the power.
The supreme court of Michigan, in Miller v. Clark, use this language: “The assignments which are required to be recorded are those which are executed by the voluntary act of the party, and this does not apply to cases where the title is transferred by operation of law, the object of the statute being to restrict the execution of the power to the owner of the legal title to the instrument; hence, the executor or administrator of the owner of the mortgage can, as owner of the legal title, execute the power, and proceed in that manner to foreclose the mortgage.” In Morrison v. Mendenhall, 18 Minn. 232, (Gil. 212,) the court upheld a foreclosure where an assignment of the mortgage had been made by an attorney in fact whose authority was’ not of record. The mortgage was partnership property. The partnership consisted of three persons, one of whom was made managing partner by the articles of copartnership. The assignment was executed by the managing partner for himself, and by one other partner for himself, and by the managing partner as attorney in fact for the absent partner. The transfer was made in the usual course of firm business, and the court upheld it. But in that case the court, after quoting the statute, say: “The manifest purpose of this requirement of the statute was to make the contents of the mortgage, and, so far as the statute goes, to make the title to the mortgage, matters of record. This mode of foreclusure being altogether in pais, and having been devised (as it undoubtedly was) to avoid the delay and expense of judi-
