Leverson v. Olson
| Decision Date | 03 July 1913 |
| Docket Number | 81912 |
| Citation | 142 N.W. 917,25 N.D. 624 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Morton County, S. L. Nuchols, J.
From a judgment denying a peremptory writ of mandamus, plaintiff appeals.
Affirmed.
B. W Shaw and Leverson & Olson (Newton, Dullan & Young, of counsel), for appellant.
If a purchaser, at forced sale, is also a creditor having a prior lien to that of the redemptioner, other than the judgment (or lien) under which such purchase was made, the amount of such other lien, with interest, must also be paid by the redemptioner. There is no exception, and the statute must be strictly complied with. State ex rel. Brooks Bros. v O'Connor, 6 N.D. 285, 69 N.W. 692.
A redemptioner must not only pay the amount of the purchase price and interest, taxes, etc., on redemption, but he must also pay the amount of any prior lien held by the purchaser against the property. VanDyke v. Herman, 3 Cal. 296; Knight v. Fair, 9 Cal. 117; McMillan v. Richards, 9 Cal. 413, 70 Am. Dec. 655.
Any prior lien which the purchaser may have, other than the one upon which sale was made, must be paid by the redemptioner or creditor holding a subsequent lien on redemption from sale. Sharp v. Miller, 47 Cal. 82.
If a redemptioner seeks to redeem from the purchaser, he must pay all liens of the holder of the certificate of purchase paramount to the lien under which redemption is sought to be made. 3 Freeman, Executions, § 1878; 17 Cyc. 1332; People ex rel. Rice v. Ransom, 2 Hill, 51.
Hanley & Sullivan (John Carmody, of counsel) for respondent.
A mortgagee cannot be compelled to accept payment of his mortgage until it is due. A judgment, when properly docketed is always due, and payment may be made at any time. 11 Jones, Mortg. 6th ed. § 1052, and cases cited. North Dakota Horse & Cattle Co. v. Serumgard, 17 N.D. 466, 29 L.R.A.(N.S.) 508, 138 Am. St. Rep. 717, 118 N.W. 453; Rev. Codes 1905, § 6141.
A prior lien to that upon which sale was made, held by the purchaser or holder of the certificate of such sale, need not be paid by a redemptioner on redemption of the property from such sale. Nopson v. Horton, 20 Minn. 268, Gil. 239; Abraham v. Holloway, 41 Minn. 156, 42 N.W. 867; Campbell v. Oakes, 68 Cal. 222, 9 P. 77.
The lien of a prior judgment or mortgage is in no manner affected by sale under a subsequent lien. Campbell v. Oakes, supra; Horn v. Indianapolis Nat. Bank, 125 Ind. 381, 9 L.R.A. 676, 21 Am. St. Rep. 231, 25 N.E. 558; Bridgeport v. Blinn, 43 Conn. 274; McDonald v. Beatty, 10 N.D. 511, 88 N.W. 281. The cases cited in 17 Cyc. 1332, distinguished.
This is an appeal from a judgment of the district court of Morton county, quashing an alternative writ of mandamus theretofore issued on the petition of plaintiff and appellant against the sheriff of said county. By such writ plaintiff sought to compel the defendant, as sheriff, to execute and deliver to him a sheriff's deed to the premises described in the writ, pursuant to a mortgage foreclosure sale and a sheriff's certificate issued to and held by plaintiff as the purchaser at such foreclosure sale. Prior to the expiration of the period allowed for redemption, one Wm. H. Brown, the owner of a junior mortgage on the premises, sought to redeem therefrom by paying to the sheriff the amount due the plaintiff as such purchaser, with legal interest, taking the requisite statutory steps to effect a redemption. It is conceded by appellant that such redemption was valid, provided it be held that Brown was not required, under the statute, to pay, in addition to the amount paid by him, a sum sufficient to satisfy a mortgage held by plaintiff prior to the mortgage foreclosed. Whether it was necessary so to do is the sole question presented on this appeal. The trial court held adversely to plaintiff's contention.
The facts are not in dispute, and so far as material are as follows: On February 1, 1908, the real property involved was owned by one John Olson Solberg, and on that date he executed and delivered to Kate C. Montgomery a mortgage for $ 500 on said property due February 1, 1913, and also a commission mortgage thereon for $ 50 to William T. Souder to secure five promissory notes of $ 10 each, payable February 1, 1909-10-11-12 and 13 respectively, which commission mortgage is subject to the $ 500 mortgage aforesaid. On March 2, 1908, Solberg executed and delivered a third mortgage to the Bingenbeimer Mercantile Company to secure the sum of $ 150, and on April 9, 1908, he executed and delivered to Wm. H. Brown a fourth mortgage for $ 400, under the lien of which latter mortgage Brown asserted his right to redeem. All of such mortgages were duly recorded, and no question arises as to the validity thereof, nor as to the priority of the liens on the premises involved, according to the dates of their execution, as above mentioned.
On February 26, 1910, the Bingenheimer Mercantile Company mortgage was duly and legally foreclosed, and the plaintiff and appellant became the purchaser at the sale, to whom a sheriff's certificate of sale was duly issued; the amount bid and for which the premises were sold was $ 228. On February 13, 1909, the Souder mortgage was assigned to appellant, and he was the owner and holder thereof at the time of Brown's redemption under the fourth mortgage; and it is appellant's contention that, in order to effect a valid redemption, Brown should have paid the amount due on the Souder mortgage.
While the statutory provisions governing this case are somewhat ambiguous, and do not clearly reflect the legislative intent we are agreed that the construction adopted by the trial court is correct, and the judgment must therefore be affirmed. While the language of the statute, when literally construed, lends support to appellant's contention, we are constrained to hold, for reasons which we will hereafter briefly state, that such construction would do violence to the evident purpose and object of the legislature, which was that the debtor's property, as far as possible, shall go toward the payment of his debts to the full extent of its value. McDonald v. Beatty, 10 N.D. 511, 88 N.W. 281; North Dakota Horse & Cattle Co. v. Serumgard, 17 N.D. 466, 29 L.R.A.(N.S.) 508, 138 Am. St. Rep. 717, 117 N.W. 453; Bridgeport v....
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