Todd v. Johnson
| Decision Date | 27 June 1892 |
| Citation | 52 N.W. 864,50 Minn. 310 |
| Parties | William P. Todd v. Albert Johnson et al |
| Court | Minnesota Supreme Court |
June 10, 1892, Argued
Appeal by Andrew J. Finnegan, one of the defendants, from a judgment of the District Court of Kandiyohi County, Powers, J entered October 28, 1891, quieting and confirming the title of plaintiff, William P. Todd, to eighty acres of land in Meeker County.
Ole Eidem owned the land and on April 15, 1876, mortgaged it to George F. Snow with power of sale in case of default in payment of the debt secured. He made default, and the land was sold by the sheriff under the power February 1, 1879 pursuant to notice, and was bid in by Snow. The mortgagor failed to redeem, but his judgment creditors filed the notices and took the proceedings stated in the opinion. The plaintiff claims under these redemptions. The defendant Finnegan claims under Snow, contending that no valid redemption was ever made.
Judgment reversed.
Edward Savage, for appellant.
Although both the redemptioners in this case professed to redeem as judgment creditors, there is no evidence that either of them was a creditor, or ever obtained a judgment. The first step in proving a lien is to show the existence of a judgment; the second, to show that it is docketed. Rockwood v Davenport, 37 Minn. 533; Jackson v. Hasbrouck, 12 John. 213; Sinclair v. Jackson, 8 Cow. 543; Baker v. Kingsland, 10 Paige, Ch. 366.
It was not shown that Mackay had any judgment lien on this land, or that he filed a sufficient notice of intention to redeem this land; nor did he obtain the certificate required by the statute. The certificate of redemption did not state the amount claimed to be due on his judgment at the time of redemption. Williams v. Lash, 8 Minn. 496, (Gil. 441;) Wilson v. Hayes, 40 Minn. 531; Tice v. Russell, 43 Minn. 66; Miller v. Lewis, 4 N.Y. 554; Buchanan v. Tracy, 45 Mo. 437; Smith v. Buse, 35 Minn. 234; Nelson v. Central Land Co., 35 Minn. 408; Greve v. Coffin, 14 Minn. 345, (Gil. 263.)
Healy & Miller, for respondent.
Plaintiff was not proving his judgment in this action. He was establishing the relation of debtor and creditor between Mackay and Eidem. That was one of the links in the chain of title. Herrick v. Ammerman, 32 Minn. 544.
The notice of intention to redeem filed by Mackay was insufficient, but redemption was actually made and Snow received and has retained the money. The object of the notice was to fix the order in which the parties were to exercise the right of redemption and this object was accomplished. Atwater v. Manchester Sav. Bank, 45 Minn. 341.
This is an action to determine adverse claims to real estate, each party alleging and relying on a strictly legal title. Each claims title through the foreclosure of a mortgage held by one Snow, who was the purchaser at the foreclosure sale. Plaintiff claims through alleged redemptions by subsequent judgment lien creditors; defendant through a conveyance by Snow, made several months after the year from the time of the foreclosure sale expired. The foreclosure sale was February 1, 1879. January 31, 1880, one Mackay filed what was intended as a notice of intention to redeem, though it did not describe either the mortgage or the foreclosure sale or the land. As a notice of intention to redeem any particular land from any given sale, it was about as bad as could be drawn, and it was wholly ineffectual; but on February 5th the sheriff received the money from him, and issued a certificate of redemption. January 28, 1880, P. P. Mast & Co., a corporation, filed notice of intention to redeem on two judgment liens claimed by it subsequent to the lien claimed by Mackay, and February 7th it paid the proper amount to the sheriff, who issued to it a certificate of redemption, and plaintiff claims title through it.
The several judgments are claimed to have been rendered by justices of the peace, and transcripts filed, and the judgments docketed in the office of the clerk of the district court for the county. At the trial, the only evidence of the judgments offered were certified copies of the docketing. This was not sufficient. A judgment must be proved by the judgment record, or an authentication of it. The docketing, which is no part of the judgment, but which is an act done after its entry, for the purpose, under the statute, of making it a lien on real estate, does not prove it. The case of Herrick v. Ammerman, 32 Minn. 544, (21 N.W. 836,) relied on by respondent, does not decide that the docket alone is the judgment, but that under 1878 G. S. ch. 65, §§ 72, 73, the filed transcript with the docketing, makes the judgment of the justice a judgment of the district court, and it may be proved by copies of the transcript and docket, authenticated by the clerk of that court.
It is objected to the certificate of redemption issued to Mackay that it does not state, as the statute requires, the amount claimed to be due on the lien upon which the redemption was made. It would seem hard that such a defect should defeat the right of a subsequent redemptioner, especially that it should defeat it in favor of the purchaser, the statement not being required for his information, and if there be anything due on the lien, so that the right to redeem exists, he being no way interested in the amount of it. Whether a subsequent redemptioner may or may not take advantage of such a defect, we are satisfied the purchaser cannot. But assume that the defect avoided Mackay's redemption, then the case would be that he failed to redeem, and that would not affect P. P. Mast & Co.'s right to redeem within the time allowed on the lien of their judgment, to wit, five days after the five days allowed Mackay.
The defect in Mackay's notice of intention to redeem presents a more serious question. The appellant urges that, his notice being ineffectual, he was not a redemptioner under the statute; consequently P. P. Mast & Co. was the first redemptioner, and ought to have made its redemption within five days after the year...
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