Kueker v. Murphy

• Decision Date: 06 January 1912
• Docket Number: 17,405
• Citation: 120 P. 362,86 Kan. 332
• Parties: H. F. KUEKER, Appellee, v. DANIEL MURPHY et ux., Appellants
• Court: Kansas Supreme Court

120 P. 362

86 Kan. 332

H. F. KUEKER, Appellee, v. DANIEL MURPHY et ux., Appellants

No. 17,405

Supreme Court of Kansas

January 6, 1912

Decided January, 1912.

Appeal from Ottawa district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

REDEMPTION--Mortgage Foreclosure--Amount Required to Redeem. In order to redeem mortgaged premises, sold under a judgment of foreclosure, the redemptioner is required to pay the amount for which the land was sold, and interest thereon, together with costs and taxes, and the word "costs" as used in section 476 of the civil code means the costs of redemption and not the costs which accrued in the foreclosure action.

David Ritchie, and F. D. Boyce, for the appellants.

R. A Lovitt, and E. C. Sweet, for the appellee.

OPINION

JOHNSTON, C. J.:

W. H. Kueker and wife were, in February, 1905, the legal owners of the land in controversy, and at that time they executed a mortgage thereon in the sum of $ 650 to secure the payment of a. promissory note to Daniel Murphy and wife, the appellants in the case. There was a default in the payment of the note, and on April 7, 1908, Murphy secured a judgment for $ 773.43 and the foreclosure of the mortgage, and, later, in a sale, Murphy bid in the property at $ 200, the highest and best bid offered. The court, in the order of sale, allowed a redemption period of nine months. Before the expiration of the period of redemption W. H. Kueker and wife assigned their equity of redemption to H. F. Kueker by a proper quitclaim deed, and thereafter H. F. Kueker, wishing to redeem the land, paid to the clerk of the district court of Ottawa county the sum of $ 206.52, which amount was duly recorded in the redemption record on June 16, 1908. Thereafter, on June 15, 1909, the sheriff of Ottawa county executed and delivered to the appellants a sheriff's deed for the property in question, based on the previous sale thereof, and upon which sheriff's deed the appellants base their right of action in this case. Kueker, claiming that a redemption had been effected, brought this action to set aside the sheriff's deed, and a judgment holding it to be void was rendered. The $ 206.52, which was paid by the appellee, H. F. Kueker, to redeem, was made up of the $ 200, the amount for which the land was sold, and $ 1.67, the interest on the amount of the bid; taxes of $ 2.65, and interest thereon 20 cents, and $ 2, the cost of redemption.

The evidence in the case shows that the legal costs of the foreclosure action, and subsequent costs incident thereto, amount to a total of $ 33.20, and it is contended that this latter amount should have been collected as a proper part of the amount necessary to redeem, and that, inasmuch as it was not collected, there was no redemption within the legal meaning of that term, and consequently the sheriff's deed is valid and vests title.

The single question involved is a determination of the meaning of the word "costs" as used in section 476 of the civil code. It provides that:

"The defendant owner may redeem any real property sold under execution, special execution, or order of sale, at the amount sold for, together with interest, costs, and taxes, as provided for in this act, at any time within eighteen months from the day of sale as herein provided," etc.

In another section the amounts to be paid by redemptioners are referred to and it is there provided:

"The terms of redemption shall be, in all cases, the reimbursement of the amount paid by the then holder of the certificate of purchase added to the amount of his own lien, with interest, together with costs, subject to the exemption contained...