Kelly v. Rogers

• Court: Minnesota Supreme Court
• Writing for the Court: Young
• Citation: Kelly v. Rogers, 21 Minn. 146 (Minn. 1874)
• Decision Date: 16 December 1874
• Parties: PATRICK KELLY <I>vs.</I> CHARLES F. ROGERS.

21 Minn. 146

PATRICK KELLY vs. CHARLES F. ROGERS.

Supreme Court of Minnesota.

December 16, 1874.

This action was brought in the district court for Wabasha county, and was tried before Van Dyke, J. Upon the verdict of the jury, judgment was entered for plaintiff, from which the defendant appealed.

Morris Lamprey and Kinney & Wilson, for appellant.

Thomas Wilson and Scott & Hahn, for respondent.

YOUNG, J.

The plaintiff in his complaint alleges, in substance, that one Scott, being the assignee and owner of a mortgage made by one Hanna to certain Amsbreys, on October 14, 1865, and covering the S. 1-2, N. E. 1-4, sec. 4, T. 110, R. 13, foreclosed the same by advertisement pursuant to statute; that at the foreclosure sale, on January 27, 1872, the defendant Rogers purchased the mortgaged property for $742, and received the usual certificate of sale, which was duly recorded; that on May 19, 1868, Hanna mortgaged to the plaintiff the said property, and also the N. E. 1-4 of the N. E. 1-4 of said section 4, to secure his promissory note for $779, no part of which has been paid. The complaint then proceeds as follows: "Fifth, that subsequently, and before the expiration of the time allowed by law for the redemption of said real estate from said foreclosure sale, to wit, on or about December 15, 1872, * * * this plaintiff, being ignorant of the time when said foreclosure sale was made, and of the time when said right of redemption expired, and being unable to read or write, called upon said defendant, informed him of his interest in said real estate, as aforesaid, and of his intention to redeem the same from said sale by virtue of his said interest, and requested him, the said defendant, to inform him, this plaintiff, when the time for the redemption thereof would expire; and that he, the said defendant, then and there, falsely and fraudulently, and with intent to deceive, mislead, cheat and defraud this plaintiff, so that he, this plaintiff, would fail to take such steps in time as were necessary to be taken in the premises to preserve and protect his interests in said real estate under his said mortgage, by the redemption thereof from said sale, represented and stated to this plaintiff that the year allowed by law for said redemption would not expire until February 27, 1873, when in truth and in fact said year would and did expire on January 27, 1873, as the said defendant then well knew. That this plaintiff was entirely ignorant as to when said foreclosure sale was made, or as to when the year of redemption would expire, and, relying entirely upon said representations and statements of said defendant, he failed to take such steps as were by law necessary to be taken to effect and perfect his redemption from said sale, and preserve his interest in said real estate under his said mortgage. That on February 4, 1873, he came to said Lake City for the purpose of taking such steps as were necessary to redeem said real estate from said foreclosure sale, and calling upon said defendant to ascertain the amount he would be required to pay to make such redemption, was informed by him that he was too late, that the time for redemption had already expired.

"Sixth, that on said February 4, and immediately after the plaintiff had called upon him, the defendant, for the purpose of carrying out and perfecting his scheme to cheat and defraud the plaintiff, executed a warranty deed to one H. M. Brown, which deed was dated and acknowledged on said February 4, 1873, and on February 5, 1873, was duly recorded.

"Seventh, that no redemption from said foreclosure sale having been made, the said H. M. Brown is, by virtue of said sale and of the deed last above mentioned, and ever since said February 4, 1873, has been, the owner in fee of said real estate."

The complaint then proceeds to allege that Hanna was insolvent and had absconded from the state prior to said December 15, all which was well known to defendant; that the real estate first described is of the value of $1600; and that the N. E. 1-4, N. E. 1-4, sec. 4, is of the value of $600. That by reason of the premises, and the defendant's false and fraudulent representations, the plaintiff has lost his said security and his said debt against said Hanna, and has been injured and misled to his damage in the sum of $1000.

By the statute in force at the date of the mortgage to the Amsbreys, and by which the time for redemption from the foreclosure sale to the defendant was regulated, the plaintiff might redeem at any time within three years from the date of the sale, i. e. at any time before January 28, 1875, unless the right of redemption, or some portion of the time for redemption, had been waived in writing executed and recorded in the same manner as mortgages were then executed and recorded. Laws 1860, ch. 87, §§ 1, 3; Carroll v. Rossiter, 10 Minn. 174. The defendant's counsel contends that the complaint does not show any statutory waiver of any portion of the time for redemption, and therefore fails to show that the time for redemption expired on January 27, or had expired when this action was commenced; that as the time allowed by law was three years, and not one year, there was no such thing as "the year allowed by law for said redemption;" that there could be nothing fraudulent in any statement or representation which the defendant might make as to the expiration of this purely imaginary year; and that the plaintiff could be in no way damaged by any such representation.

The right of redemption after foreclosure sale is founded on statute, and not on any contract of the parties, although for certain purposes, parties are presumed to contract with reference to the existing statute, and thereby to make the law a part of their contract. Whatever period was allowed for such redemption, after sale upon foreclosure of mortgages governed by the statute of 1860, was allowed by law. If no waiver had been made, that period was three years. If two of these years had been waived, and but a single year remained, the right to redeem during that year was a right allowed by law, and not in any sense conferred by the instrument of waiver, which, of itself, conferred no right of redemption whatever. It follows that, under this statute, the time allowed by law for redemption in any case might be three years, or any shorter period of time, and there might well be "the year allowed by law for redemption" in a case where two years had been waived, as there would be "the three years allowed by law" in the absence of any waiver.

The allegations in the complaint in regard to the expiration of the time for redemption, show that, in the present case, the time allowed the plaintiff for redemption was but a single year; and as the three years allowed by the statute could be shortened to a single year only by an instrument of waiver, executed and recorded in the manner prescribed by statute, these allegations amount to an inferential and argumentative averment that two of the three years had been waived by such an instrument. The allegation, in a subsequent paragraph of the complaint, that on February 4, 1873, the defendant executed to H. M. Brown a warranty deed, and that, no redemption having been made from the foreclosure sale, the said Brown is, and since February 4 has been, by virtue of said sale and said deed, the owner in fee of said real estate, is also an indirect, argumentative and inferential way of stating that the time within which the plaintiff could redeem, expired prior to February 4, 1873.

We agree with the plaintiff's counsel that this is by no means a commendable mode of pleading that the...