Catron v. Gallup Fire Brick Co.

• Decision Date: 02 April 1929
• Docket Number: No. 3362.,3362.
• Citation: 34 N.M. 45,277 P. 32
• Parties: CATRONv.GALLUP FIRE BRICK CO. et al.
• Court: New Mexico Supreme Court

34 N.M. 45

277 P. 32

CATRON

v.GALLUP FIRE BRICK CO. et al.

No. 3362.

Supreme Court of New Mexico.

April 2, 1929.

Syllabus by the Court.

A suit to redeem lands from sale under decree of court must be brought in the county where the lands are situate.

It appearing on the face of the complaint that the court lacked local jurisdiction, assuming but not deciding that the question should have been raised by demurrer, a judgment sustaining a plea in abatement will not be disturbed; there having been no motion to strike the plea.

Appeal from District Court, McKinley County; Holloman, Judge.

Suit by C. C. Catron against Gallup Fire Brick Company and others. Judgment for defendants and plaintiff appeals. Affirmed and cause remanded.

Suit to redeem lands from judicial sale must be brought in county where lands are situated. Code 1915, §§ 4067, 4773, 4775, 5567.

F. A. Catron, of Santa Fé, for appellant.

H. C. Denny, of Gallup, for appellees.

WATSON, J.

Appellant sued appellee in the district court of Santa Fé county alleging that certain lands situate in McKinley county had been sold under a decree of the district court of Santa Fé county, and that appellee had become the purchaser at such sale; that within nine months thereafter appellant, being a party interested in said real estate, had unconditionally tendered to appellee the amount of the purchase money paid, with interest at the rate of 12 per cent.; that appellee had refused said tender; and prayed “judgment of redemption of and for order of possession of said premises; * * * for an accounting of the rents and profits thereof since * * * the day of tender, and for such other order or writ of this court as may be necessary and proper to carry out said redemption.”

Appellee pleaded in abatement “that lands and interest in lands situate, lying and being in the county of McKinley, state of New Mexico, are the objects of said suit, and the herein cause is not brought or maintained in the county where said land or any portion thereof is situate.”

[1] This plea was sustained and a decree was entered abating the cause. That ruling appellant contends was erroneous.

Code 1915, § 5567, provides:

“Section 1. All civil actions commenced in the district courts shall be brought and shall be commenced in counties as follows, and not otherwise: * * *

Fourth. When lands or any interest in lands are the object of any suit in whole or in part, such suit shall be brought in the county where the land or any portion thereof is situate.”

Therefore, if a suit to redeem from a judicial sale has for its object lands or an interest in lands, the district court of Santa Fé county, as a matter of venue, had no jurisdiction of the present suit. Whether such was the object of the suit will depend upon the nature of a suit to redeem.

Code 1915, § 4775, provides: “* * * Any real estate which may be sold under any order, judgment or decree of any court, may be redeemed by the mortgagor, or his assign or any other party interested in said real estate by paying to the purchaser or his assign the amount paid, with interest from the date of purchase at the rate of twelve per centum per annum at any time within nine months from the date of sale.”

According to this language, payment of the proper amount within the proper time effects redemption. It is obvious, however, that the payment is intended as the condition of redemption rather than redemption itself. Redemption is a well-understood technical term. As applied to mortgages, it is “the ‘buying back’ and recovering the legal estate by the mortgagor after it has passed to the mortgagee.” Pom. Eq. Jur. (4th Ed.) § 1219. We have no doubt that the term has the same meaning in our statute, and that the purpose of the statute was to give the right, not only to pay the amount specified, but to obtain a decree, either requiring the purchaser to convey to the redemptioner, or, under Code 1915, § 4773, itself operating as a conveyance.

The redemption statute contents itself with creating the right; failing to prescribe any procedure by which it may be enforced. However, the law of mortgages includes the well-known equitable proceeding known as the “bill to redeem.” This suit, according to Pomeroy, had for its direct object “to declare and establish some particular estate, interest, or right, either legal or equitable, in the property which is the subject matter.” Eq. Jur. (4th Ed.) § 1429.

We cannot doubt that the Legislature, in borrowing from the law of mortgages the redemption idea to be applied to judicial sales in general, intended that it should be enforced by means of the established remedy. We think that the “private right” established by our redemption statute is to be enforced by the civil action prescribed by our Code of Civil Procedure. Code 1915, § 4067.

We do not understand counsel for appellant to contend that the decree of the district court of Santa Fé county could have any effect upon the title or possession of lands situated in McKinley county. It is contended, however, that his purpose in the present suit is merely to obtain an adjudication that his tender was sufficient to accomplish redemption, and that, having obtained such decree, he will be relegated to subsequent appropriate action to obtain for himself the title and possession. The contention amounts to this: That appellant may resort to one district court to obtain an adjudication of the facts and may...