Nichols v. Tingstad
| Decision Date | 14 June 1901 |
| Docket Number | 6731 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by George E. Nichols against Annie Tingstad and others. From a judgment in favor of defendants. Plaintiff appeals.
Affirmed.
Newton & Smith, for appellants.
The sale and right of redemption under the power given in the mortgage contract is governed by the law in force at the time the mortgage is made, and at the time of the foreclosure, and so all the rights of the parties of such foreclosure sale must be determined. Smith v. Greene, 41 F. 455. The deed on foreclosure transfers only such estate or interest in the mortgaged property as the mortgagor had at the time of the execution of the mortgage or has acquired up to the time of the foreclosure. McMillan v. Richards, 9 Cal 365, 70 Am. Dec. 655; Trimm v. Marsh, 54 N.Y. 599. The equity of redemption is a distinct estate from that which is vested in the mortgagee before or after condition broken. It is descendible, devisable and alienable like other interests in real property. Clark v. Reyburn, 8 Wall. 318, 324, 19 L.Ed. 354. The mortgagee has only a chattel interest. Gardner v. Heartt, 3 Denio 233; Astor v. Hoyt, 3 Wend. 603; Runyan v Merserau, 11 Johns. 554. The deed speaks from the time of its execution; and the time referred to in the statute is the time when the deed upon foreclosure by action is made and no other time. If the deed was intended to speak from the date of the mortgage the statutes should have so specified. Packer v. Ry. Co., 17 N.Y. 283, 298. The same rule applies to a master's sale, where the lien holders subsequent to the mortgage are not made parties, which applied to a sale upon foreclosure by advertisement under the Revised Statutes, and before provision was made for serving notice upon lien holders. Rector v. Mack, 93 N.Y 492. In a foreclosure by action it is not the deed that divests the subsequent lien holders, but it is the judgment or decree. Laverty v. Moore, 32 Barb. 347; Laverty v. Moore, 33 N.Y. 658; Tallman v Ely, 6 Wis. 244; Craig v. Herzman, 81 N.W. 288. The deed given upon a foreclosure by action is a complete bar against both the mortgagor and mortgagee as they are necessary parties--no other parties unless made defendants, but only as provided in the decree or judgment. Newark Lime Co. v. Morrison, 13 N.J.Eq. 133; Laird-Norton Co. v. Herker, 62 N.W. 104. A statutory foreclosure after the death of a mortgagor divests the interests of his heirs and persons claiming under them. Reilly v. Philips, 57 N.W. 780. The foreclosure by advertisement before the Rev. Codes of 1895 went into effect, was a limited foreclosure. It only foreclosed the mortgagor and his heirs, and persons claiming under such heirs. American etc. Co. v. Ry. Co., 99 F. 313; Vroom v. Ditnas, 4 Paige Ch. 526; 3 Co-op. Ed. 545 & note; Benedict v. Gilman, 4 Paige, Ch. 58; 3 Co-op. Ed. 340 & note; Carpenter v. Brenham, 40 Cal. 221. A subsequent lien holder when he comes to redeem must pay, or if he brings an action to be permitted to redeem, must offer to pay the entire mortgage debt and interest, but not the costs, of a previous statutory foreclosure. Bunce v. West, 17 N.W. 179; Gage v. Brewster, 31 N.Y. 218; 2 Jones on Mtgs., § 1075; Martin v. Fudley, 23 Minn. 13; Bruce v. Tilson, 25 N.Y. 194; Vanderkemp v. Shelton, 11 Paige Ch. 28; 5 Co-op. Ed. 45; Spurgin v. Adamson, 18 N.W. 293.
John E. Greene, for respondent.
Where a first mortgage upon real estate has been regularly foreclosed by advertisement, the right of redemption of the second mortgagee is barred after the expiration of one year from the date of sale. §§ 5411 to 5429, Comp. Laws; Hokanson v. Gunderson, 56 N.W. 172; Wiltsie on Mortg. Foreclosure, 812.
This action was brought by the plaintiff to foreclose a mortgage on real estate given by the defendant John E. Tingstad to the Huber Manufacturing Company on November 21, 1889, and by it assigned to the plaintiff before the commencement of this suit. The complaint states the following facts, in substance: That on October 31, 1889, the said John E. Tingstad was a single person, and the owner of the land described in the mortgage attempted to be foreclosed in this action; that on said October 31, 1889, he executed and delivered to the Farmers' Trust Company his mortgage on said lands to secure the payment of $ 1,035, which said mortgage contained a power of sale duly authorizing said mortgagee to foreclose said mortgage by a sale of the lands mortgaged, as provided by statute, in case of a default in the conditions of said mortgage; that said mortgage was duly assigned to one S.W. Landon on January 23, 1890, and was duly and regularly foreclosed by said Landon by advertisement under such power of sale on August 24 1895, and the premises mortgaged were on that day bid in and purchased at the sale under such foreclosure by one George H. Hollister, who received from the sheriff making the sale a certificate of sale of such premises in the form provided by law; that said Hollister duly assigned such sheriff's certificate of sale to the defendant John B. Lockhart on August 24, 1896; that there was no redemption from such sale by the defendant Tingstad, or any other person, during the year provided by law for such redemption, or at any other time; that on August 27, 1896, the sheriff of Cass county executed and delivered to said Lockhart a sheriff's deed of such premises, which deed was duly recorded in the office of the Register of Deeds of Cass county on August 29, 1896; that on said day the said Lockhart made and executed a warranty deed of said premises to the defendant Annie Tingstad, who, with her husband, John E. Tingstad, has been in possession of the same ever since said date. The complaint also sets forth other facts usually set forth in complaints for the foreclosure of mortgages, which it is not necessary to set forth here, and demands judgment for the foreclosure of such mortgage, and prays that an accounting be had of the rents and profits of said land as against the defendants in possession, and prays to be allowed to redeem from the foreclosure and sale under the Farmers' Trust Company mortgage, and offers to pay any sum found due upon the Farmers' Trust Company mortgage. The defendants John B. Lockhart, Annie Tingstad, and George G. French have appeared in the action, and demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action as against said defendants, each defendant raising the same question by such demurrer. The plaintiff has appealed to this court from the order sustaining such demurrer.
No question is raised in this court as to the regularity of the foreclosure under the Farmers' Trust Company mortgage but it is conceded by the plaintiff that such foreclosure was regular in all respects. It will be seen that the mortgage in suit and the Farmers' Trust Company mortgage were executed and delivered while the Comp. Laws of 1887 were in force, and that the foreclosure of the Farmers' Trust Company mortgage was made while such Compiled Laws were in force. The question to be determined on this appeal must be determined from a construction of the provisions of such Compiled Laws relating to the rights of mortgagees under their mortgages, both before and after deeds have been issued upon foreclosures thereof. The precise question involved in the issue raised by the demurrer of the defendants is whether, under Comp. Laws of 1887, a junior mortgagee has the right to redeem from a foreclosure of a prior mortgage made under a power of sale contained in such prior mortgage after one year has elapsed from the day of sale under such foreclosure of such prior mortgage, and after a deed has been issued to a purchaser under such foreclosure sale. In other words, did the Comp. Laws of 1887 give to a second or junior mortgagee the right to redeem from a foreclosure and sale under a power of sale in a first mortgage, after one year had elapsed from such sale, and a sheriff's deed had been delivered to the purchaser under such foreclosure,--such foreclosure being regular in every respect,--and no equitable grounds existing or urged in favor of such demand or claim to be allowed to redeem. The plaintiff broadly contends that a second mortgagee had such a right under such laws. To determine that question, reference must be made to the several provisions of the Comp. Laws of 1887 relating to foreclosure of real estate mortgages by advertisement under a power of sale contained therein. In referring to prior mortgages in this case, we refer to mortgages that are prior in fact and prior of record. Section 5420, Comp. Laws of 1887, provides what a certificate of sale of real estate sold under a power of sale contained in a mortgage shall contain, and provides that the officer or person making the sale shall file such certificate of sale in the office of the register of deeds, and that such certificate may be recorded in the office of the register of deeds as provided in case of a certificate of sale of real property sold under execution, "and shall have the same validity and force." A certificate of sale of real property under a power of sale contained in a mortgage has by this section, the same force and validity as a certificate of sale of real property sold under an execution. Section 5148 provides what force and validity is attached to such a certificate of sale of real estate under execution as follows: "Upon a sale of real property the purchaser is substituted to and acquires all the right, title, interest and claim of the judgment debtor thereto." Under this section a purchaser under a sale of real estate under...
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