McGee v. Marshall

• Decision Date: 01 July 1926
• Docket Number: No. 5126.,5126.
• Citation: 210 N.W. 521,54 N.D. 584
• Parties: McGEE v. MARSHALL, Sheriff (HANNAH MORTGAGE CO., Intervener).
• Court: North Dakota Supreme Court

54 N.D. 584

210 N.W. 521

McGEE

v.MARSHALL, Sheriff (HANNAH MORTGAGE CO., Intervener).

No. 5126.

Supreme Court of North Dakota.

July 1, 1926.

Syllabus by the Court.

Subdivision 2 of section 7760, C. L. 1913, requiring a redemptioner to produce to the officer or person from whom he seeks to redeem a copy of an assignment necessary to establish his claim, verified by the affidavit of himself or of a subscribing witness thereto, is for the purpose of showing the officer or person from whom he seeks to redeem, that he is in fact a redemptioner entitled to redeem, and the production of the original assignments of mortgage under which the redemptioner claims the right to redeem is a substantial compliance with the statute, when the sheriff accepts the original assignments and issued a certificate of redemption.

The purpose of filing the redemption papers provided for in section 7760 is to inform other lien creditors of the amount they will have to pay if they choose to redeem, and to protect the certificate of sale holder against persons not entitled to redeem.

Appeal from District Court, Williams County; John C. Lowe, Judge.

Suit by George A. McGee for mandamus, to be directed to A. R. Marshall, Sheriff of Williams County, in which the Hannah Mortgage Company intervened. From a judgment awarding a writ of mandamus, defendant and intervener appeal. Reversed, and writ denied.Fisk, Craven & Taylor, of Williston, for appellants.

E. B. Goss, of Minot, and Wm. G. Owens, of Williston, for respondent.

BURKE, J.

On the 21st day of August, 1917, O. Les Alspach and wife executed and delivered to the Federal Land Bank a mortgage on the N. W. 1/4 of section 27, Tp. 156, R. 97, in Williams county, N. D. On November 10, 1917, the said O. Les Alspach and wife executed and delivered to the Farmers' Bank of Ray, Ray, N. D., a mortgage on said real estate to secure the sum of $1,200. Which mortgage was assigned to E. M. Hannah October 26, 1923, and assigned to the Hannah Mortgage Company August 25, 1925. The mortgage to the Federal Land Bank was foreclosed by advertisement and the land sold on September 6, 1924, to the Federal Land Bank for the sum of $2,654.54. On the 6th day of April, 1925, the Federal Land Bank filed a notice of additional lien for the sum of $25. On August 10, 1925, the Federal Land Bank assigned the certificate of foreclosure sale and notice of additional lien to Geo. A. McGee, the plaintiff.

On the 4th day of September, 1925, Frank E. Fisk, attorney and agent for the Hannah Mortgage Company produced and presented to the sheriff of Williams county, who made the foreclosure sale, the two original assignments of the $1,200 mortgage, being Defendant's Exhibits B and C, and at the same time he produced a draft for the sum of $2,866.90, and for $27.73, for additional lien; that being the amount necessary to redeem from said foreclosure and additional lien. He asked the sheriff if he would accept the draft in place of currency, and the sheriff stated that he would. On the same day he filed the said assignments in the office of the register of deeds of Williams county, and on the 5th day of September, 1925, he gave to the sheriff of said county the draft for $2,866.90 and for $27.73 additional lien, and filed a notice of redemption as follows:

“Notice of Redemption, in Duplicate.

To the Sheriff and Register of Deeds of Williams County, North Dakota, and All Concerned:

Notice is hereby given that the undersigned, Hannah Mortgage Company, a corporation, does hereby redeem from the real estate foreclosure sale made by the sheriff of Williams county, N. D., on September 6, 1924, which foreclosure sale was of and concerning a certain mortgage executed by O. Les Alspach and wife, as mortgagors, to Federal Land Bank as mortgagee, dated August 21, 1917, and recorded August 25, 1917, at 2:42 p. m., in Book 135 of Mortgages at page 346, in the office of the register of deeds of said county, which said mortgage was an incumbrance upon real estate in Williams county, N. D., to wit, the northwest quarter of section 27, township 156 north of range 97 west of the fifth principal meridian, which mortgage was foreclosed, and at which foreclosure sale of said mortgage said Federal Land Bank of Saint Paul became the purchaser of the real estate involved for the sum of $2,654.54.

Said undersigned, Hannah Mortgage Company, claims the right to redeem from said mortgage sale as redemptioner because of the following facts: That said O. Les Alspach and wife executed to Farmers' Bank of Ray, of Ray, N. D., a mortgage on said real estate as herein described, which said last-mentioned mortgage was dated November 10, 1917, and recorded in the office of said register of deeds on November 14, 1917, in Book 142 of Mortgages at page 212, and was given to secure the sum of $1,200 and interest thereon, which said mortgage was thereafter assigned in writing to E. M. Hannah by an instrument dated October 26, 1923, which assignment was recorded in the office of said register of deeds on September 4, 1925, at 3:45 o'clock p. m., in Book 195 of Assignments, being instrument No. 173048 at page ---, which said mortgage was thereafter assigned in writing to Hannah Mortgage Company by an instrument dated August 25, 1925, which assignment was recorded in the office of said register of deeds on September 4, 1925, at 3:46 o'clock p. m. in Book 151 of Assignments being instrument No. 173049 at page ---, and is a valid and subsisting lien of record in said office, and that nothing has been paid on the debt thereby secured. That the undersigned is the owner and holder of the said last-described mortgage and the debt secured thereby, and that under and by virtue of said mortgage, as by the statutes of the state of North Dakota in such case made and provided, is entitled to make redemption of said premises from the mortgage foreclosure sale herein before set forth. That this notice is made for the purpose of making redemption of said premises sold as aforesaid, and affiant respectfully claims and alleges that the amount now actually due the undersigned on the debt secured by said mortgage last described is the sum of $2,234.87 and interest thereon at 10 per cent. per annum from September 5, 1925, which amount this redemptioner is willing to and does hereby allow on his said claim for the purpose of effecting such redemption. That the amount due the holder of the sheriff's certificate as aforesaid is the sum of $2,866.90, which amount the said undersigned hereby and herewith tenders to the said sheriff of said Williams county, N. D., plus $27.73 for additional lien filed October 29, 1924, with interest to date.

In witness whereof, the said Hannah Mortgage Company has caused these presents to be executed by Fisk. Craven & Taylor, its agents, hereunto duly authorized this fifth day of September, 1925. Hannah Mortgage Company, per Fisk, Craven & Taylor, Its Agents, and Attorneys in Fact, by Frank E. Fisk, One of Its Agents and Attorney in Fact.

State of North Dakota, County of Williams-ss.:

On this 5th day of September, A. D. 1925, before me, the undersigned notary public in and for said county and state, personally appeared Frank E. Fisk to me to be the person who is described in and whose name is subscribed to the within instrument as the agent and attorney in fact of Hannah Mortgage Company and acknowledged to me that he subscribed the name of Hannah Mortgage Company thereto as principal and his own name as attorney in fact. Mildred Sollien, Notary Public, State of N. D. [N. P. Seal.] My commission expires Nov. 27, 1929.

The undersigned sheriff hereby admits due and personal service of the foregoing and annexed duplicate notice of redemption and also that said Hannah Mortgage Company tendered and paid to him the sum of $2,894.63 and also served and produced with said notice a note of the record of the mortgage under which said redemptioner claims the right to redeem, certified by the register of deeds of Williams county, N. D., and also an affidavit by said Frank E. Fisk, one of the agents for said redemptioner, showing the amount actually due on said mortgage to be as in the foregoing notice stated all of which was done at the courthouse of the city of Williston, this 5th day of September, A. D. 1925. A. R. Marshall, as Sheriff of Williams County, N. D., by D. C. Poling, Deputy Sheriff.

State of North Dakota, County of Williams-ss.:

On this 5th day of September, A. D. 1925, before me, the undersigned clerk of court in and for said county and state, personally appeared D. C. Poling, deputy sheriff of said Williams county, N. D., known to me as such, and the person who executed the foregoing instrument as such, and he to me acknowledged that he signed the name of A. R. Marshall thereto as sheriff and his own name as deputy sheriff. Peter J. Erickson, Clerk of Court, Williams County, North Dakota. [Clerk of Court Seal.]

State of North Dakota, County of Williams-ss.:

Frank E. Fisk, being duly sworn on oath, says: That he is one of the agents for Hannah Mortgage Company. That said Hannah Mortgage Company is the owner and holder of a certain real estate mortgage dated November 10, 1917, recorded in the office of the register of deeds of Williams county, N. D., on November 14, 1917, in Book 142 of Mortgages at page 212, executed by O. Les Alspach and wife as mortgagors to Farmers' Bank of Ray, Ray, N. D., as follows: The northwest quarter of section 27, township 156 north of range 97 west of the fifth principal meridian, to secure the sum of $1,200 and interest thereon at the rate of 10 per cent. per annum from date until paid. That no part of said debt has been paid, and that there is now due and unpaid on said mortgage and the debt thereby secured the sum of $2,234.87, together with interest at the rate of 10 per cent. per annum from date hereof. Frank E. Fisk.

Subscribed and sworn to before me this 5th day of September, A. D. 1925. Mildred Sollien,...