Lowry Akers

• Decision Date: 15 July 1892
• Citation: 50 Minn. 508,52 N.W. 922
• Parties: LOWRY v AKERS ET AL.
• Court: Minnesota Supreme Court

50 Minn. 508

52 N.W. 922

LOWRYvAKERS ET AL.

Supreme Court of Minnesota.

July 15, 1892.

(Syllabus by the Court.)

1. A foreclosure sale was had January 11, 1890. The land was sold January 23d under execution upon a judgment subsequent to the mortgage. There were several judgment liens subsequent to that on which the execution sale was had. The purchaser at the execution sale, and the respective holders of these judgments, filed each timely notice of intention to redeem from the foreclosure. No notice of intention to redeem from the execution sale was filed. The purchaser at the execution sale redeemed in time from the foreclosure sale. The holder of the first subsequent judgment redeemed from that sale in time, and within a year from the execution sale. The holder of the second subsequent judgment, within the time for him to redeem from the foreclosure sale, but after a year from the execution sale, attempted redemption from the former sale. Held, that his lien had been cut off by the execution sale, so that he had no right to redeem from the prior sale.

2. The sale on a second lien, whether made before or after that on a first lien, has the effect, unless it is itself cut off by the first sale, or unless it is redeemed from, to cut off all liens and interests subject to it.

3. While there are still rights of redemption outstanding the lien upon which a redemption is made is not merged and extinguished in the title of the purchaser at the sale redeemed from, but it passes by subrogation to any subsequent redemptioner.

4. The lien on which a redemption is made is not extinguished by the fact that the value of the property is equal to the amount of the lien with the amount paid for redemption added.

Appeal from district court, Anoka county; WM. LOCHREN, Judge.

Action by Thomas Lowry against John M. Akers and others to determine the right to certain land. From a judgment for plaintiff, defendant Akers appeals. Affirmed.

E. E. Cooley and W. E. Akers, for appellant.

Koon, Whelan & Bennett, for respondent.

GILFILLAN, C. J.

The situation, so far as necessary to state it for the decision of this case, is, Mayo was the owner of land consisting of a quarter section. There were liens upon it in the following order as to priority: (1) A mortgage in favor of the Windham County Savings Bank, assigned to Lowry; (2) a mortgage in favor of Rollin, assigned to Lowry; (3) a judgment in favor of Tenney, Aldrich & Co., which was a lien on the north one half of the quarter; (4) a judgment in favor of Lougee, a lien on said north one half, assigned to Lowry; (5) a judgment in favor of Post, a lien on said north one half, assigned to Akers. The bank mortgage was foreclosed, under the power of sale, by a sale January 11, 1890, Lowry being the purchaser. The north one half of the quarter was sold January 23, 1890, under an execution upon the Tenney, Aldrich & Co. judgment, Koon being the purchaser. January 10, 1891, notices of intention to redeem from the foreclosure sale were filed as follows: One by Lowry, under the Rollin mortgage, and one by him under the Lougee judgment; one by Koon, as a creditor under the execution sale to him, and one by Akers under the Post judgment. No notice of intention to redeem from the execution sale was filed. It will be observed that, unless redeemed from, the sales would become absolute,-the mortgage sale, January 11, 1891; the execution sale, January 23, 1891,-and that, if the execution sale became absolute, its effect was to cut off all liens subject to the judgment on the north one half of the quarter. January 15, 1891, Lowry redeemed under the Rollin mortgage from the foreclosure sale. January 19, 1891, Koon redeemed as a creditor having a lien under the execution sale to him. January 23d Lowry redeemed under the Lougee judgment. January 28th Akers redeemed, or attempted to redeem, under the Post judgment. No attempt was made by any one to redeem from the execution sale. It will be observed that Lowry redeemed under the Lougee judgment before its lien was in any way affected by the execution sale, and while it was in full life, and he had the right to redeem under it, and also that Akers' redemption was not made till the execution sale had become absolute, unless its becoming absolute had been in some way arrested. The question, then, is, did it become absolute so as to cut off liens subsequent to the judgment? In Parke v. Hush, 29 Minn. 434,13 N. W. Rep. 668, the question whether the sale under the judgment second in priority cut off the lien of a third judgment, so that the owner of it could not redeem from a sale under the first judgment, was not presented or passed upon. The only question really decided was whether, the...