Gillitt v. M'Carthy

• Decision Date: 05 December 1885
• Parties: HARVEY GILLITT <I>vs.</I> JOHN McCARTHY.
• Court: Minnesota Supreme Court

Page 318

34 Minn. 318

HARVEY GILLITT vs. JOHN McCARTHY.

Supreme Court of Minnesota.

December 5, 1885.

Action of ejectment, brought in the district court for Dakota county, and tried by McCluer, J. On November 26, 1859, one William Gillitt owned the land in question, and on that day it was duly sold, on execution against Gillitt, to one Howes, for $500. On November 25, 1860, Gillitt tendered to the sheriff of the county $550 for redemption of the land from such sale, which tender was refused. After the year of redemption, a sheriff's deed was made and delivered to Howes. Defendant claims title under Howes, and plaintiff claims title under the attempted redemption. The court held that the tender was insufficient in amount, under Laws 1858, c. 61, and that that statute was the only law applicable to redemption from this sale. Judgment was ordered and entered for defendant, from which the plaintiff appeals.

W. Hodgson and J. M. Gilman, for appellant.

J. N. Searles, for respondent.

GILFILLAN, C. J.

In 1858 an act was passed entitled "An act to regulate the foreclosure of real estate." Pub. St. 1858, c. 75, § 21. It provided "that any real estate hereafter to be sold upon the execution, judgment, order, or decree of any court of this state, or upon the foreclosure by advertisement or otherwise of any mortgage, contract or liability, shall be held by the party purchasing the same subject to the right of judgment debtor or mortgagor, or any one claiming through or under him or them, to redeem the same at any time within," etc.; then follow provisions as to how redemption shall be made, and regulating the right of possession pending the right of redemption. This act was amended in 1860 and 1861, but not so as to remove the objection here made, and as so amended it continued in force until 1866. There must have been a great many execution sales while it was in force, and, so far as has come to our knowledge, either since becoming members of this court, or while on the bench of the district court, or while in practice at the bar, this is the first instance in which it was suggested that it did not apply to redemptions from execution sales as well as mortgage sales. That it did so apply we think we are justified in saying was the common understanding while it remained in force. The intention of the legislature, taking the language used as indicating it, is as clear as words could make it.

But it is said it must be construed so as to exclude execution...