Kenmare Hard Coal, Brick & Tile Co. v. Riley

• Decision Date: 11 April 1910
• Citation: 126 N.W. 241,20 N.D. 182
• Court: North Dakota Supreme Court
• Parties: KENMARE HARD COAL, BRICK & TILE CO. v. RILEY et al.

20 N.D. 182

126 N.W. 241

KENMARE HARD COAL, BRICK & TILE CO.

v.RILEY et al.

Supreme Court of North Dakota.

April 11, 1910.

Syllabus by the Court.

The right to redeem from a sale on foreclosure of a real estate mortgage after the year allowed by law for a redemption, under a claim of relying on a promise by the purchaser to accept payment at redemptioner's convenience, will not be upheld unless it appears by clear and convincing evidence that such promise was made and in good faith relied on.

If a promise to allow a redemption after the year has expired is made and relied on to the redemptioner's detriment, the purchaser is estopped from denying the right to redeem.

In a letter from the purchaser at such foreclosure sale to the owner of said land, the following language was used: “We will also say that if you do not care to pay up this matter now, let it go to suit your convenience, as the matter is drawing interest at the rate of 12 per cent.” Held, in view of the indefinite character of the statement and the evidence in relation to the intention of the owner to redeem within the year, that the right to redeem after the year expired was not shown by that clear and convincing evidence required in this class of cases.

Appeal from District Court, Ward County; Goss, Judge.

Action by the Kenmare Hard Coal, Brick & Tile Company against Anna T. Riley and others. Judgment for plaintiff, and defendants appeal. Reversed, and action dismissed.

Bessesen & Berry (Turner, Wright & Lewis, of counsel), for appellants. Bosard & Ryerson, J. Van Valkenburg, and Plinn H. Woodward, for respondents.

MORGAN, C. J.

This is an action to redeem from a sale of real estate under a power of sale contained in a mortgage. The owner of the land was Malcolm McBride, who mortgaged it to Clara A. Beiseker on December 8, 1900, to secure the payment of the sum of $250, with 12 per cent. interest thereon. This mortgage was assigned to the defendant Anna T. Riley on January 7, 1901. On the 3d day of June, 1905, it was foreclosed by advertisement, and the land bid in at the sale by said Anna T. Riley for the amount of said mortgage and interest at 12 per cent. from date, and costs and taxes, being in all the sum of $496.21. The foreclosure of the mortgage is conceded to have been regular. The issue raised by the pleadings is whether the defendant T. L. Beiseker, as agent for the defendant Riley, extended the time during which a redemption might be made from the sale.

The plaintiff was the owner of the land at the time of the foreclosure. In reference to the right of the plaintiff to redeem, the complaint contains the following allegation: “That thereafter, to wit, on or about November 25, 1905, said Beiseker & Co., by T. L. Beiseker, in writing informed said plaintiff that in case that plaintiff did not desire to pay the amount due on said mortgage at that time, or within the time allowed by law for redemption of the said foreclosure, that said company might have such further time as suited its convenience to make such payment, provided that said company pay interest on said amount at the rate of 12 per cent. per annum until paid.” This allegation of the complaint is denied by the answer. What transpired between J. A. Wright, the agent for the plaintiff, and T. L. Beiseker, agent for the defendant, in reference to the alleged extension of the time during which a redemption might be made, was through letters. Some of these letters are in evidence, and are, so far as material, as follows: The foreclosure sale was made on June 3, 1905, and the one year allowed for a redemption therefrom expired on June 4, 1906, being Sunday. On November 14, 1905, Wright wrote Beiseker & Co., at Fessenden, N. D., and inclosed a check for $315 as payment in full for said mortgage. On November 21st Beiseker answered this letter, and informed Wright that said mortgage had been foreclosed, and that the amount necessary to redeem from the foreclosure was $529.38, and that upon receipt of $214.38 in addition to the $315 he would have the sheriff issue to him a redemption certificate. On November 23, 1905, Wright wrote Beiseker in answer to the letter of November 21st, and complained of the charges for costs and interest, and asked for a detailed statement of the amount necessary to redeem. On November 25th Beiseker sent a detailed statement of the taxes paid, interest since the execution of the mortgage at 12 per cent. attorney's, printer's, sheriff's fees, and recording fees, making the amount due at the date of writing said letter $529.38. In that letter is contained the following statement: “There is no use of our getting into an abortive argument over this matter, but we feel that the present holder of that mortgage has carried you beyond reason, and, if it is true that you were ready to pay this matter years ago, we exclaim, why didn't you? We will also say that if you do not care to pay up this matter now, let it go to suit your convenience, as the matter is drawing interest at the rate of 12 per cent.” The $315 was returned to Wright in this letter. This letter was never answered by Wright, and there was no further communication between the parties in reference to the mortgage until June 6, 1905, after the deed had been issued, when Wright wrote from Kenmare, N. D., to Beiseker & Co., at Fessenden, N. D., as follows: “My Dear Sir: Kindly drop me a line by return mail and let me know how soon the McBride mortgage that was foreclosed has to be redeemed, and greatly oblige. Also let me know the amount needed, and would you discount the attorney's fees if paid at once?” On June 11th Beiseker & Co. answered Wright's letter as follows: “Mr. J. A. Wright, Kenmare, N. Dak. Dear Sir: Replying to yours of June 6th, relative to the McBride foreclosure, will say that this property went to sheriff's deed on June 5th.” On June 14th Wright wrote Beiseker & Co. as follows: “Gentlemen: I sent you a letter on June 1st, asking for the exact...