Murphy v. Teutsch

• Decision Date: 23 September 1911
• Parties: MURPHY v. TEUTSCH et al.
• Court: North Dakota Supreme Court

22 N.D. 102

132 N.W. 435

MURPHY

v.TEUTSCH et al.

Supreme Court of North Dakota.

June 5, 1911.

Rehearing Denied Sept. 23, 1911.

Syllabus by the Court.

The acceptance of a partial payment by the purchaser at an execution sale prior to the expiration of the statutory period of redemption operates as a waiver to the right to sheriff's deed, and the execution debtor will be allowed to redeem after the expiration of such statutory period.

Where execution creditors purchase property at an execution sale, and agree that their respective interests in the certificate of sale be in proportion to the relative amount of their debts at the time of sale, their interest in such certificate is a joint one, and each is bound by the acts of the joint owner.

An oral agreement by one of the joint owners of a sheriff's certificate of sale to extend the period of redemption is binding upon all the joint owners of such certificate.

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

Action by Anna D. Murphy against Eugene Teutsch and others. From an order overruling demurrer, defendant Teutsch appeals. Affirmed.F. B. Lambert, for appellant. Thompson & Schull, for respondent.

CRAWFORD, Special Judge.

The complaint in this case in substance alleges: That at all times mentioned therein plaintiff was the owner in fee of certain lots in the city of Minot of the value of $16,000. That defendants Teutsch and Swenson held mechanics'liens against said premises, and an action was brought by Teutsch to foreclose the same on or about April 16, 1908. Thereafter, and on the 27th day of August, 1908, judgment was entered in favor of Teutsch for $190.10, and in favor of Swenson in the sum of $838.38; and said defendants were adjudged to have a lien on the lots described, and a direction that said premises be sold to satisfy said liens. That thereafter the sheriff levied upon said property under special execution, and advertised the same for sale, and sold the same on October 24, 1908, to Teutsch and Swenson for the sum of $1,067.08, and on the 9th day of November following the sheriff executed and delivered a certificate of sale to Teutsch and Swenson jointly, with the usual recitations. That plaintiff had at various times prior to the expiration of the period of redemption paid to Swenson several sums of money, amounting in the aggregate to $350, and subsequent to the payment of the said money, and on the 20th day of October, 1909, the plaintiff through her agent interviewed said Swenson relative to effecting a redemption of the said premises from said foreclosure sale, and stated to said Swenson that said plaintiff would pay the full amount necessary to redeem said premises on the 30th day of October, 1909, to which Swenson agreed, and further informed the plaintiff that, if said sum was paid on said date, it would be satisfactory, and at the same time stating that the period of redemption did not expire until the 9th day of November, 1909, all of which was communicated to the plaintiff by her agent, and the plaintiff relied upon the statements, and believed that she had a full legal right to redeem said premises any time prior to November 9, 1909, further alleging that during all the times mentioned Swenson had the custody of the certificate of sale, and was at all times fully authorized by the said defendant Teutsch to accept and receive money paid by the plaintiff for the purpose of redeeming the premises from the foreclosure sale. That on the 30th day of October, 1909, the plaintiff, through her agent, tendered to the sheriff of Ward county the full amount necessary to redeem said premises, which tender was refused, and thereafter, on the same day, deposited the amount necessary to redeem in a bank in Minot to the credit of said sheriff, and gave notice to the sheriff of the deposit of the money to his credit for the purpose of redeeming the premises from said sale. Two days later the defendant paid defendant Swenson $579, the balance due him, and he executed a certificate of redemption as to his interest in said foreclosure sale.

To this statement of facts the plaintiff adds, among other things, her prayer for relief that she be adjudged and decreed to be entitled to redeem said premises from said foreclosure sale within such time as may be fixed by the court. The complaint shows upon its face that the proceedings were regular for the foreclosure of the mechanics' liens up to and including the issuance of the sheriff's certificate; that plaintiff had a legal right to redeem from that foreclosure up to October 24, 1909. That right she failed to exercise. For the loss of the right which followed as a consequence of her failure to do so she seeks redress in this action, and asks the court to permit her to redeem after the year of redemption has expired.

The power of courts of equity to give relief in certain class of cases and permit a redemption of real estate sold under execution after the statutory period of redemption has expired has been generally recognized, and such power has been exercised when a proper state of facts required it. See Prondzinski v. Garbutt, 8 N. D. 191, 77 N. W. 1012;Laing v. McKee, 13 Mich. 124, 87 Am. Dec. 738;Wilson v. Eggleston, 27 Mich. 257;Graffam v. Burgess, 117 U. S. 180, 6 Sup. Ct. 686, 29 L. Ed. 839;Schroeder v. Young, 161 U. S. 334, 16 Sup. Ct. 512, 40 L. Ed. 721;Hart v. Seymour, 147 Ill. 598, 35 N. E. 246. Such power has been exercised by courts of equity most frequently upon a sufficient showing of either fraud, accident, or justifiable mistake.

The defendant Teutsch relies mainly upon two propositions: (1) That the plaintiff allowed the statutory period of...