N. Dakota Horse & Cattle Co. v. Serumgard

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: SPALDING
• Citation: 117 N.W. 453,17 N.D. 466
• Decision Date: 17 July 1908
• Parties: NORTH DAKOTA HORSE & CATTLE CO. v. SERUMGARD.

17 N.D. 466
117 N.W. 453

NORTH DAKOTA HORSE & CATTLE CO.
v.
SERUMGARD.

Supreme Court of North Dakota.

July. 17, 1908.

Syllabus by the Court.

[117 N.W. 453]

A “redemption” from the purchaser at a foreclosure sale by one not the mortgagor is a compulsory sale of the interest acquired by the purchaser at the foreclosure sale, and such redemption can only be enforced by one given that right by statute, and then only by pursuing the method prescribed by the statute conferring the right.

The holder of a mortgage superior to the one foreclosed, assuming to be a redemptioner when not made so by statute, who tenders the amount necessary to redeem, becomes by the issuance to him of a certificate of redemption and the acceptance and retention by the holder of the certificate of sale of the money tendered, as between himself and the party who parts with such certificate, a “redemptioner.”

One who is not made by statute a redemptioner, but thus acquires the rights of a redemptioner, also assumes the obligations and liabilities of a redemptioner, and it follows that he must permit a lawful redemptioner to redeem from him within the period given by statute to a subsequent lienholder by judgment or mortgage for such purpose.

The tender, by a lawful redemptioner of a bank check issued by a solvent and reputable bank for the sum necessary to be paid to effect a redemption, to a prior redemptioner or his agent, for the purpose of receiving redemption money, effects a redemption, unless refused because it is a check, instead of legal tender, and the subsequent lienholder given an opportunity to procure and tender the necessary currency to comply with the legal requirements of the holder of the certificate.

The sheriff or other person who conducts the sale on foreclosure by advertisement is the agent of the purchaser or holder of the certificate to receive redemption money, but is not such an agent as can bind his principal to accept a check, instead of money, from one qualified to redeem, or to retain the money received by such agent from one not a lawful redemptioner, if the principal makes seasonable objection to the form of payment, or refuses forthwith to recognize the party making the tender as entitled to redeem as a redemptioner, when he is not made so by statute.

Under section 7465, Rev. Codes 1905, the property sold may be redeemed within one year from the day of sale in like manner and to the same effect as provided in chapter 12 for redemption

[117 N.W. 454]

of real property sold upon execution, so far as the same may be applicable, by-

(1) The mortgagor or his successor in interest in the whole or any part of the property.

(2) By a creditor having a lien by judgment or mortgage upon the property sold, or on some share or part thereof, subsequent to that on which the property was sold.

Only those mentioned in subdivision 2 of the above section are redemptioners, and as such entitled to 60 days in which to redeem from a previous redemptioner.

Real estate is subject to mortgage by the holder of the legal title between the act of sale on foreclosure under a power contained in a prior mortgage and the expiration of the period allowed by statute for redemption.

The redemption statute is remedial in its nature, and is intended, not only for the benefit of creditors holding liens subsequent to a lien in process of foreclosure, but more particularly for the purpose of making the property of the debtor pay as many of his debts as it can be made to pay, and to prevent its sacrifice, and should be liberally construed.

Every person having an interest in property subject to a lien has a right to redeem it from the lien at any time after the claim is due, and before his right of redemption is foreclosed. Rev. Codes 1905, § 6141.

The provision of section 7464, Rev. Codes 1905, that the certificate given on the execution of a power of sale contained in a mortgage shall have the same validity and effect as the certificate of sale in like manner furnished upon the sale of real property upon execution, provided for by section 7137, Rev. Codes 1905, does not relate to the effect of the act of sale, but to the validity and effect of the certificate.

The certificate of sale in such case is only evidence of what transpired for the purpose of record, notice to protect purchasers against intervening claims, and to show who may become entitled to a deed, and it conveys no title.

A “foreclosure sale” under a power contained in the mortgage, which conveys the title of the mortgagor, is in a legal sense the complete foreclosure proceedings, beginning with the act of sale and terminating with the execution of the deed after the expiration of the period allowed for redemption. It includes all the proceedings for the foreclosure of the right of redemption by sale and deed.

The title conveyed by such completed foreclosure sale is all the right, title, and interest in and to the mortgaged premises which the mortgagor possessed at the time the mortgage was executed or which was subsequently acquired by him.

The phrase “on the property sold,” in the statutory definition of a redemptioner as being one holding “a lien by judgment or mortgage on the property sold,” applies to the land or premises, as those words are commonly used.

The holder of a mortgage given after the act of sale under a prior mortgage, and before the expiration of the period allowed for redemption from such sale, is a redemptioner.

The sale in the exercise of a power contained in a mortgage which conveys the title of the mortgagor is the sale as completed by the execution of a deed at the expiration of the period allowed for redemption.

The fact that a mortgage given after the act of sale occurred on a prior mortgage, and before the expiration of the period allowed for redemption, is not recorded until after the expiration of one year from the sale, but is recorded within the sixty days additional allowed where there has been a redemption, does not deprive the holder of the last mortgage given of the right to redeem on complying with the other statutory requirements.

Appeal from District Court, Pierce County; C. J. Fisk, Judge.

Action by the North Dakota Horse & Cattle Company against Siver Serumgard. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Guy L. Whittemore (Scott Rex and Engerud, Holt & Frame, of counsel), for appellant. A. E. Coger and Guy C. H. Corliss, for respondent.

SPALDING, J.

This is an action brought by the respondent for the determination of adverse claims to certain real property situated in Pierce county, N. D. The complaint is in the statutory form. The defendant answers, setting forth a series of transactions, involving mortgages, redemptions, and an attempted redemption, and prays for judgment that the plaintiff has no right, title, interest, or estate in the premises described, or any part thereof, but holds the pretended title thereto in trust for the defendant, and demands judgment that the plaintiff be denied the relief asked in its complaint and that the defendant be awarded affirmative relief: First, that the defendant is the sole owner in fee of said premises, and of the whole thereof; second, that the plaintiff holds said premises in trust for the defendant herein; third, that the plaintiff be required to reconvey said premises to the defendant herein; fourth, that the plaintiff be forever enjoined from asserting any claim, right, title, interest, or estate in or to said premises, or any part thereof, adverse to the defendant herein; fifth, for such other and further relief as to the court may seem just in the premises; sixth, for his costs and disbursements. The court made its findings, and judgment was entered for the plaintiff, adjudging and decreeing that the plaintiff is the owner in fee of the real estate involved, and that defendant has no title, legal or equitable, in any part thereof, and has no interest or lien thereon, and quieting the title of the plaintiff in and to the property described, as against the defendant, Siver Serumgard, and for its costs and disbursements. The defendant appeals from the judgment, contending that on the facts found judgment should be entered in his favor.

[117 N.W. 455]

As found by the court, one Russell was the owner of the premises involved and gave five mortgages thereon for various sums and on different dates between the 8th day of October, 1898, and the 21st day of March, 1902. All such mortgages became the property, by assignment or otherwise, prior to the 28th day of June, 1904, of one Lillian M. Plummer. All these mortgages, and the assignments of those assigned, were duly recorded at about the date of their execution or assignment. On the 2d day of June, 1904, Russell gave a sixth mortgage on the same premises to one Coger to secure the sum of $600, and this mortgage was assigned to one Williams on the 25th day of March, 1905, and the assignment thereof duly recorded on the same day. This mortgage was recorded on the 2d day of June, 1904. Mrs. Plummer foreclosed her fifth mortgage by advertisement, and the sale occurred March 26, 1904. She became the purchaser and received the certificate, bearing date March 26, 1904, and it was duly recorded on that day. No question is made as to the regularity and validity of this foreclosure, or of the assignments. March 25, 1905, Williams, holding the sixth or Coger mortgage by assignment, redeemed from the foreclosure sale of the fifth mortgage as a redemptioner and received a certificate of redemption, which was recorded on the 25th of March, 1905. The validity of this redemption is not questioned. April 12, 1905, one Sannan acquired by purchase and assignment the first four mortgages on said premises held by Mrs. Plummer, and his assignments were duly recorded on the 14th day of April, 1905. On the 25th day of April, 1905, Sannan filed his affidavit and notice of redemption as required by law for a redemptioner, which were recorded on...