recover the alleged. balance due upon the sale of the lumber. Moreover, the plaintiff was put upon its guard on this point by the answer. The facts which defendant would have alleged to show an error in the account stated, had the action’ been founded thereon, are distinctly set up in the answer. In this answer the plaintiff was notified that on the trial the defendant would insist that the contract price was $450 and no more. The judgment is reversed, and a new trial ordered. All concur.
John L. Johnson, Plaintiff and Respondent, v. F. T. Day,
Johnathan T. Backus, Trustee, and F. G. Bartlett, as Sheriff of Sargent County, Dakota Territory, now State of North Dakota, Defendants and Appellants.
Foreclosure of Mortgage—Attorney’s Fee—Filing Certificate of Sale.
1. In foreclosure proceedings by advertisement, where the mortgage provided for an attorney's fee, and the mortgagee was represented by an attorney, the failure of such attorney to file the affidavit required by § 5429, Comp. Laws, does not invalidate the sale. But such failure would prevent the mortgagee from recovering such attorney’s fee; and if, in such case, the officer making the sale sold the mortgaged property for an amount sufficient to pay the debt, with costs and disbursements, including such attorney’s fee, he would be liable, on demand, to the mortgagor for the amount of such attorney’s fee.
2. The failure of the officer making such sale to file a duplicate certificate of sale, in the office of the register of deeds where the mortgage is recorded, within 10 days after such sale, as required by § 5420, Comp. Laws, does not invalidate the sale. This section is directory, and not mandatory.
3. In such foreclosure proceedings a mistake in the middle initial of the mortgagor’s name is immaterial. The law recognizes but one Christian name.
(Opinion Filed Dee. 8, 1891.)
APPEAL from district court, Sargent county; Hon. W. S. Lauder, Judge.
W. A. Gates and J. E. Bishop, for appellants. No appearance for respondent.
