Nopson v. Horton

• Decision Date: 01 January 1873
• Citation: 20 Minn. 239
• Parties: STENGRIM NOPSON v. HIRAM T. HORTON and others.
• Court: Minnesota Supreme Court

20 Minn. 239

STENGRIM NOPSON

v. HIRAM T. HORTON and others.

Supreme Court of Minnesota.

Appeal by plaintiff from a judgment of the district court, Olmsted county.

Action to cancel a certificate of redemption executed by the sheriff to defendant.

One Olson executed a mortgage to plaintiff, December 13, 1860. Plaintiff foreclosed February 6, 1871, he becoming the purchaser, and February 20, 1871, he redeemed the land from tax sales for taxes of 1868 and 1869. After the execution of plaintiff's mortgage, Olson conveyed to one Sleator, who in December, 1868, mortgaged part of the premises to one Mott, and the remainder to one Bastian, who both assigned to defendant on February 9, 1872. Having within the year filed the proper notice of his intention to redeem, he presented to the sheriff certified copies of the record of the two mortgages, the assignments, and his affidavit of the amount due on them, and paid to the sheriff in United States treasury and national bank notes the amount for which the premises sold at the foreclosure, and received from him and recorded the usual certificate of redemption.

Chas. C. Wilson, for appellant.

Stearns & Start, for respondents.

BERRY, J.

1. In case of foreclosure by advertisement, "the mortgagor, his heirs, executors, administrators, or assigns" may redeem within twelve months after the sale. Gen. St. c. 81, § 13. By section 16, "if no such redemption is made, the senior creditor, having a lien, legal or equitable, on the real estate, or some part thereof, subsequent to the mortgage, may redeem within five days after the expiration of such 12 months; and each subsequent creditor having such lien, within five days after the time allowed all prior lien-holders, as aforesaid, may redeem," etc. A second mortgagee is "a creditor having a lien," within the meaning of this section, and is therefore entitled to redeem, in accordance with the provisions thereof, after the 12 months have expired. His ownership of a debt, and a mortgage securing the same, make him "a creditor having a lien." For certain purposes he may properly be regarded as an assign, (see Buttrick v. Wentworth, 6 Allen, 79,) as perhaps under the provisions of section 18, c. 81, Gen. St. But if he be in any light an assign, there is no inconsistency in holding him to possess the added character of "a creditor having a lien." It is further to be remarked, that unless he may be regarded as such creditor, the right of redemption allowed him by the statute is wholly ineffectual for his protection. This is so, because the only effect of a redemption by a simple assign is to annul the sale, (section 15, Id.,) and not to subrogate the redemptioner to the rights of the party from whom the redemption is made, as in the case of redemption by a creditor having a lien, (section 15, supra.)

2. In case mortgaged premises are sold for taxes before a foreclosure sale, and the mortgagee, after his foreclosure sale, redeems from the tax sale by making the requisite payment to the county treasurer, a second mortgagee may redeem upon paying the sum for which the premises were sold at the foreclosure sale, with interest at 7 per cent. per annum, and without paying the amount paid to redeem from the tax sale. This is so because the statute (Gen. St. c. 81, §§ 13-16) so provides. Section 152, c. 11, Gen. St., enacts that "any person who has a lien, by mortgage or otherwise, upon any land on which the taxes have not been paid, may pay such taxes, and the interest, penalty, and charges thereon, and the receipt of the person authorized to receive such tax shall constitute an additional lien on such land to the amount therein specified and the interest thereon; and the amount so paid, and the interest thereon, shall be collectible with, and in the same manner as, the amount secured by the original lien." In case of a lien by mortgage, this...