Gates v. Ege
| Decision Date | 12 June 1894 |
| Docket Number | No. 8702.,8702. |
| Citation | 57 Minn. 465 |
| Parties | AMANDA GATES <I>vs.</I> JAMES H. EGE, Sheriff, <I>et al.</I> |
| Court | Minnesota Supreme Court |
The defendants, James H. Ege, as Sheriff of Hennepin County, the Northwestern Mutual Life Insurance Company, the Chadbourn Finance Company and Daniel Fish, demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. It stated among other facts that Jerome F. Tubbs owned lot twelve (12) in block ten (10) in Penniman's Addition to Minneapolis and on March 13, 1890, he and wife mortgaged it to Mary A. Topliff for $13,000 and on August 5, 1890, gave her a second mortgage thereon for $10,000. On April 6, 1891, Tubbs and wife deeded the lot to Rushton M. Dorman and he on July 5, 1893, deeded to plaintiff. Meantime, Mrs. Topliff foreclosed her second mortgage under a power of sale therein and bid in the property August 10, 1891, for $11,140.59. She also foreclosed her first mortgage under a power of sale in it and bid in the property September 7, 1891, for the amount due thereon with attorney's fees and disbursements. Parties having mechanic's liens on the premises commenced proceedings to foreclose them. These proceedings are stated in the opinion and in Wentworth v. Tubbs, 53 Minn. 338. On April 30, 1892, judgment was entered adjudging Topliff's first mortgage to be prior to all other liens. A part of Topliff's second mortgage and some of the mechanic's liens were declared coordinate and placed in a second class. The balance of Topliff's second mortgage and others of the mechanic's liens were placed in a third class. The remainder of the mechanic's liens and the liens of general judgment creditors were made fourth and fifth classes respectively, and a sale was ordered to satisfy the claims of the parties, such sale however to be made subject to the lien of the first mortgage and also to the right of Tubbs or his assigns to redeem within one year from the date of the confirmation of the sale under the judgment. Subsequently, an execution was issued thereunder and on August 30, 1892, a sale was duly made to satisfy said judgment at which Wheaton & Reynolds became the purchasers of the equity of redemption from the first mortgage, paying therefor $150, and on September 3, 1892, this sale was duly confirmed by the court. On September 7, 1892, Wheaton & Reynolds by reason of such purchase having become creditors with a right to redeem from said first mortgage sale, filed their notice of intention to redeem therefrom and did within the five days allowed by statute redeem said premises, receiving the sheriff's certificate of redemption as creditors by reason of their being purchasers at the judgment sale.
On August 31, 1893, the plaintiff presented to the sheriff the deed to Dorman and his deed to her, and tendered to him $19,066.39 and claimed the right to redeem from the sale on foreclosure of the mechanic's liens. The sheriff refused to take the money and declined to give a certificate of redemption on the ground that plaintiff being a grantee of the land could only redeem within twelve months from the day of sale on foreclosure of the first mortgage, that no proceedings or judgment in the action to foreclose the mechanic's liens had enlarged the plaintiff's right of redemption. She thereupon brought the money into court and commenced this action to redeem. The defendants demurred. The court sustained the demurrer and she appeals.
Merrick & Merrick and Welch & Welch, for appellant.
James O. Pierce, H. D. Dickinson, and Lawler, Durment & Bigelow, for respondents.
Although a great number of facts are set forth in the complaint herein, to which a general demurrer was interposed and sustained, the few which are important and controlling are as follows: April 6, 1891, the premises in controversy were owned by one Tubbs. They were then subject to a first mortgage of date March 13, 1890, and a second of date August 5, 1890, in both of which one Topliff was the mortgagee; and were also subject to certain mechanics' liens. August 10, 1891, the second mortgage was foreclosed by a sale under a power therein contained, the mortgagee, Topliff, becoming the purchaser. September 7th of the same year the first mortgage was foreclosed by a sale under a like power, the same person, Topliff, becoming the purchaser. July 8, 1891, an action was commenced by the proper parties against Tubbs and others to foreclose one of said mechanics' liens. This action was consolidated...
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