Dickerson v. Hayes
| Decision Date | 24 June 1879 |
| Citation | 1 N.W. 834,26 Minn. 100 |
| Parties | Joseph Dickerson and Wife v. George B. Hayes |
| Court | Minnesota Supreme Court |
Appeal by plaintiffs from an order of the district court for Mower county, Page, J., presiding, sustaining a demurrer to the complaint.
Order affirmed.
D. B Johnson, Jr., and Geo. N. Baxter, for appellants.
E. O Wheeler, for respondent.
The complaint seeks to have a mortgage of real estate, and the certificate of sale on foreclosure by advertisement, adjudged satisfied; the record of them cancelled, and the premises declared free from the lien thereof; or, in case that is not done, that an account be taken, and the plaintiffs allowed to redeem from the sale.
The complaint alleges that the plaintiffs were ready and willing to and offered to pay the amount actually due and owing on the mortgage before the foreclosure. But this allegation is utterly insufficient to make out a tender, because it does not show a production of the money and an offer of it to the defendant, nor any excuse for its non-production, because the amount which plaintiffs were ready and willing and offered to pay is not stated, and because there is not enough in the complaint to enable the court to determine how much was then actually due. Neither the rate of interest nor the date of the offer is stated.
A tender of a specific amount on a day named, after the foreclosure, is stated, but it was less than the amount at which the premises were bid in. At that time the right to redeem from the sale by mere act of the parties depended wholly on the statute, and was to be exercised in the manner designated in the statute. The statute requires the party redeeming to pay the money for which the property was sold with interest. An attempt to exercise this statutory right, by tendering less than the amount required by statute, cannot, in any case, have the effect of a redemption, and annul the sale or pass the title to the redemptioner. The plaintiffs are, therefore, not entitled to have the certificate of sale cancelled.
To sustain the prayer for an accounting, and for plaintiffs being allowed to redeem by paying the amount found due thereon, the complaint alleges payments on the mortgage debt, which show that the notice of sale claimed to be due at least fifty per cent. more than could be due at any rate of interest which parties might by law agree upon. The amount bid at the sale was at least for all so...
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