HUGHES V. OLSON.

[74 MINNESOTA, 237.]

MORTGAGES-FORECLOSURE-RIGHT OF PURCHASER TO ENJOIN REDEMPTION UNDER VOID JUDGMENT.-A purchaser at a mortgage foreclosure sale has the right to enjoin a person from redeeming from such sale under a void judgment purporting to have been rendered in his favor against the mortgagor.

JUDICIAL SALES-REDEMPTION - RIGHT TO RESIST. A purchaser at a mortgage foreclosure sale has the right to acquire absolute title to the land, unless it is redeemed within the time allowed by law, by one who has a right under the statute to redeem, and he cannot be deprived of this right by one who is not a lawful redemptioner.

T. F. Young, for the appellant.

Foland & McCune, for the respondents.

238 MITCHELL, J.. The plaintiff, the purchaser at a mortgage foreclosure sale, brought this action to enjoin the defendants from redeeming from the sale under a void judgment purporting to have been rendered in their favor against the mortgagor. If the allegations of the complaint are true, the pretended judgment is absolutely void for want of jurisdiction of the person against whom it was rendered. The trial court ordered judgment on the pleadings in favor of the defendants. This must have been done on the ground that the complaint did not state a cause of action.

239 The judge filed no memorandum stating wherein the complaint was insufficient, and the only reasons urged by counsel in support of the ruling of the court are: 1. That even if the judgment under which defendants propose to redeem is void, the plaintiff will not be injured by the redemption, because he will get back his purchase money and interest; and 2. The plaintiff being a stranger to the judgment, he has no right to attack it. The first of these contentions is based upon what was said in Bovey etc. Lumber Co. v. Tucker, 48 Minn. 223. Some language was used in the opinion in that case which, if detached from the context, and read without reference to the facts to which it was applied, might seem to sustain the contention. It is not true that the only right of a purchaser at a mortgage sale is to receive back his purchase money and interest. He has the right to acquire absolute title to the land, unless it is redeemed within the time allowed by law by one who has a right under the statute to redeem; and he cannot be

deprived of this right by one who is not a lawful redemptioner. If the law was otherwise, anybody and everybody might redeem without the purchaser being able to question their right to do BO: New England etc. Ins. Co. v. Capehart, 63 Minn. 120.

2. This void judgment, if given credit and effect, would prejudice the plaintiff in regard to his rights under his purchase at the foreclosure sale. Therefore he has a right to attack it, according to the very authorities cited by the respondents: Freeman on Judgments, sec. 335. He is not attacking it for the benefit of the judgment debtor, as counsel seem to assume, but for his own benefit, in order to prevent an unauthorized redemption.

Order reversed.

MORTGAGES-FORECLOSURE.-A PURCHASER at a foreclosure sale succeeds to the equitable interest of the mortgagee, and when no redemption is made this interest draws to it the subordinate legal title of the mortgagor, and his title then stands under the mortgagee precisely as if the mortgage had been an absolute conveyance at its date; in other words, the mortgage ripens into a perfect title through the process of foreclosure: Hokanson v. Gunderson, 54 Minn. 499, 40 Am. St. Rep. 354.

VOID JUDGMENTS.-EQUITY WILL ENJOIN THE ENFORCEMENT OF a void judgment if a party has no remedy at law: Note to Given's Appeal, 6 Am. St. Rep. 799. A concurrent legal remedy is not always sufficient ground for refusing to enjoin a void judgment: Note to Peet v. Chicago etc. Ry. Co., 91 Am. Dec. 452.

DULUTH CLUB v. MACDONALD.

[74 MINNESOTA, 254.]

CORPORATIONS-IMPLIED POWER TO LEVY ASSESS MENTS.-A corporation has no inherent power to assess for its own use a sum of money on the corporators, and compel them to pay it. Such power is derived only from an express promise, or from statute.

H. T. Abbott, for the appellant.

McGiffert & Hunter, for the respondent.

254 BUCK, J. This action is brought to enforce and collect two assessments levied against the defendant as a member of the Duluth Club, a corporation created and organized under and by virtue of the laws 255 of this state. The club was organized for social purposes, and in its articles of incorporation the purpose is specified as follows: "The name of this cor

poration shall be the Duluth Club, and the general object and business of said corporation shall be to promote social intercourse among its members, and to provide for them the convenience of a clubhouse."

After the club was organized it purchased a building, obtained a ground lease, and, in order to make the building suitable for a clubhouse and furnish the same, it incurred the debts for which the two assessments above referred to were made and levied. Each member had an equal interest in the clubhouse and its furnishings. No stock was provided for, or issued by, the corporation, and in 1895 it became insolvent, and unable to pay its debts from the dues received from its members, and, in order to pay off its outstanding obligations, a meeting was called for the purpose set forth in the complaint, and at said meeting, held October 15, 1895, each member was, by a unanimous vote of said club, assessed ten dollars, half thereof payable November 1, 1895, and the other half December 1, 1895; provided, however, that any member furnishing a new member to the corporation previous to January, 1896, should be deemed to have paid said assessment. Subsequently, on February 3, 1896, the club had a meeting, and voted to go into voluntary liquidation, and authorized the directors to dispose of the effects of the club, and, if the consideration received was insufficient to pay its debts, the directors were further authorized to make such further assessment on the members pro rata as should be necessary to pay the debts of said club. The effects of said club were accordingly disposed of, but another assessment was necessary to pay said debts, and accordingly the directors, on January 14, 1897, passed a resolution as follows, viz.: "That an assessment of twenty-five dollars be levied upon each member of said corporation, payable January 26, 1897," and authorized suit to be commenced against each member in case of his default to pay said assessment, said assessment being necessary by reason of the existing indebtedness of said club. Defendant paid no part of the assessment, and suit was brought against him to recover the said assessment, amounting 250 to thirty-five dollars. The complaint was demurred to, the demurrer sustained, and plaintiff brings this appeal.

We are of the opinion that the demurrer was well taken, and the order sustaining it should be affirmed. There is nothing in the complaint to show what kind of a corporation it is, except that it was organized as a social club. There was no stock, no shareholders, and it does not appear that it was authorized

to have any capital stock. It did not have a constitution, bylaws, or any articles providing that any member might be assessed for debts of the corporation, and we find no statute authorizing such assessment as that sued upon in this action. The defendant did not contract to pay any such assessment, and the debts were contracted with the corporation, not with defendant. The creditors are not seeking to enforce a liability against defendant, but it is the corporation bringing suit against one of its own members, who is not even a stockholder in the insolvent concern. Of course, the extent of his liability is measured by the extent of the obligation he enters into.

"Very clearly, a corporation has not power, as incident to it, to assess for its own use a sum of money on the corporators, and compel them, by action at law, to the payment of it. The power must be derived from an express promise or from statute": Angell and Ames on Corporations, 11th ed., sec. 544, and cases there cited. See, also, Minneapolis Harvester Works v. Libby, 24 Minn. 327. The resolutions of the plaintiff to levy the assessments against the defendant, not being within the powers of the corporation, were illegal, and hence are of no effect.

Order affirmed.

ASSESSMENTS.-One

CORPORATIONS-POWER TO LEVY who subscribes to the capital stock of a corporation is liable for an assessment upon his subscription without an express promise on his part: Windsor Electric Light Co. v. Tandy, 66 Vt. 248, 44 Am. St. Rep. 838. Directors of corporations have power to make calls or assessments on the corporate stock without showing that they are made for a corporate purpose, or that the business of the corporation required them to be made and paid, and this whether the statute confers such power, or whether it is entirely silent on the subject: Budd v. Multnomah St. Ry. Co., 15 Or. 413, 3 Am. St. Rep. 169.

BOELTER V. KLOSSNER.

[74 MINNESOTA, 272.]

EXEMPTIONS-WIFE, WHEN ENTITLED TO.-If a husband and wife are supporting themselves and their children by their joint labors in cultivating the wife's farm and caring for the household, and neither of them has any other farm or grain, either has a legal right to claim from the grain or provisions so raised on her farm an amount necessary for the support of the family for one year under the provisions of a statute exempting from attachment or final process "the provisions for the debtor and his family necessary for one year's support, either provided or growing."

E. H. Huebner, for the appellants.

W. H. Leeman, for the respondent.

272 START, C. J. This action was brought to recover from the defendants the value of certain wheat claimed by the plaintiff as exempt from sale on execution, but which was levied. upon and carried away by the defendant Osberg as constable, at the instance of the defendant Klossner, by virtue of an execution issued on a judgment in his favor against the plaintiff. Verdict for the plaintiff, and the defendants appealed from an order denying their motion for a new trial.

The plaintiff claimed the wheat as exempt under the provisions of the General Statutes of 1894, section 5459, subdivision 7, which are to the effect that "the provisions for the debtor and his family necessary for one year's support, either provided or growing," shall not be liable to attachment or sale on any final process issued from any court in this state. The only question on this appeal is whether the wheat was so exempt. The defendants' contention is that she was not entitled to any exemption of provisions for the support of herself and family because she was a married woman, living at the time of the seizure 273 with her husband, whose legal duty it was to provide for his wife and family.

This exemption is not in favor of the head of the family, but in favor of the debtor, and is intended to protect the family, and must be liberally construed, so as to effectuate its humane purpose. Where husband and wife are living together, and both have provisions which may be appropriated for the support of the family, the wife is not entitled to the exemption, nor in a case where the husband alone is supporting the family, for in such case there would be no necessity to appropriate any provisions owned by her to the support of the family. But such