Brady v. Gilman
| Decision Date | 17 November 1905 |
| Docket Number | 14,522 - (102) |
| Citation | 104 N.W. 897,96 Minn. 234 |
| Parties | MICHAEL C. BRADY v. ADAM GILMAN |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from a judgment of the district court for Hennepin county, entered purusant to the findings and order of Holt, J. Affirmed.
Redemption from Foreclosure Sale.
The plaintiff filed a notice of his intention to redeem from a mortgage foreclosure sale as a judgment creditor, but his judgment was not docketed until four hours after his notice was filed. He attempted to redeem by virtue of such notice. Held, that he was not entitled to redeem, and his attempt to do so was void.
Fractions of a Day.
The legal fiction that there are no fractions of a day has no application to cases where the statute expressly requires that notice shall be taken of the precise time an official act is done and that a record thereof be made.
Chas E. Bond and M. C. Brady, for appellant.
A. C Middelstadt, for respondent.
Action of ejectment. Trial by the court without a jury. The district court of the county of Hennepin, in which the action was pending, as a conclusion of law based upon its findings of fact, directed judgment on the merits for the defendant. It was so entered, and the plaintiff appealed from the judgment.
The question for our decision is whether the conclusion of law and judgment are supported by the findings of fact. The short facts found by the court are these: On October 7, 1903, the premises in question were duly sold on the foreclosure by advertisement of a mortgage, which was the first lien thereon, to Nathan M. Barnes, mortgagee. On October 1, 1904 another mortgage on the premises, which was the second lien thereon, was duly made to the defendant herein, and duly recorded on October 5, 1904. On the next day the defendant filed a notice in due form and substance of his intention to redeem as such mortgagee the premises from the sale on the foreclosure of the first mortgagee. No redemption was made by the mortgagors, and on October 12, 1904, the defendant as such junior mortgagee redeemed the premises from the foreclosure sale. The usual certificate of redemption was issued to him and duly recorded on the same day. On October 6, 1904, the plaintiff secured from one of the mortgagors in the first mortgage a confession of judgment in his favor in the sum of $25, and in the afternoon of that day and before 12:20 o'clock delivered it to the clerk of the district court and requested him to enter and docket it forthwith, which the clerk promised to do. There is no showing at what hour of the day last named the judgment was entered in the judgment book in the clerk's office; but the judgment docket does show that the plaintiff's judgment was not docketed until the hour of five o'clock of that day. On the same day, and at the hour of one o'clock p.m., the plaintiff filed in the office of the register of deeds a notice in proper form stating his intention as a judgment creditor to redeem the premises from the foreclosure sale. On the following October 17 the plaintiff attempted to redeem the premises as such judgment creditor, and did all things necessary to make a valid redemption, save and except that the only notice of his intention to redeem was one filed four hours before his judgment was docketed. Thereupon the usual certificate of redemption was made and delivered to the plaintiff, which was recorded the next day. On March 15 following, on application of the plaintiff and consent of the judgment debtor, the district court of the county of Hennepin ordered the clerk to amend the docket entry...
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