North Dakota Horse & Cattle Company v. Serumgard
| Decision Date | 17 July 1908 |
| Citation | 117 N.W. 453,17 N.D. 466 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Pierce County; Fisk, J.
Action by the North Dakota Horse & Cattle Company against Siver Serumgard. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
Reversed and remanded, with directions.
Guy L Whittemore (Scott Rex and Engerud, Holt & Frame, of counsel) for appellant.
Right to redeem depends upon an actual, not apparent lien. Section 7139, Revised Codes 1905; Scheibel v. Anderson, 79 N.W. 594; Scobey v. Kinningham, 31 N.E. 355; Todd v Johnson, 57 N.W. 320.
Receipt and retention of money by certificate holder from one not entitled to redeem, works a redemption. McDonald v. Beatty, 10 N.D. 511, 88 N.W. 281; Roose v. Gove, 77 P. 246; Hare v. Hall, 41 Ark. 372.
Sannan is estopped to deny his character as redemptioner. Horn v. Cole, 12 Am. St. Rep. 111; Pom. Eq. Jur. sections 803, 809, 811, 895, 810; Fargo Gas. Co. v. Fargo Electric Co., 4 N.D. 219, 59 N.W. 1066; Olson v. Orton, 28 Minn. 36; Porter v. Fletcher, 25 Minn. 493; Summer v. Seaton, 47 N.J.Eq. 103, 19 A. 884; Hill v. Blackwelder, 113 Ill. 283; Power v. Larrabee, 3 N.D. 502, 57 N.W. 789.
Sannan is bound by the recitals in his redemption papers. 16 Cyc. 699; Blood v. Light, 38 Cal. 649; Daniels v. Tierney, 102 U.S. 421, 26 L.Ed. 187; Taylor v. Riggs, 57 P. 44; Libby v. Ralston, 43 P. 294.
Unauthorized payment to sheriff extinguishes the mortgage foreclosure. Meyer v. Mintoyne, 106 Ill. 414; McMillan v. Bagley, 83 S.W. 610; San Jose Bank v. Bank, 54 P. 83; Phyfe v. Riley, 15 Wend. 248.
Tender of check on redemption is good. Section 5260, Revised Codes 1905; 28 Am. & Eng. Enc. Law, 26. So of bank notes and silver certificates. Lathrop v. O'Brien, 58 N.W. 987; Koehler v. Buhl, 54 N.W. 157; Mitchell v. Copper Co., 67 N.Y. 280; Duffy v. O'Donovan, 46 N.Y. 223.
Redemption laws are liberally construed, to make property pay as far as possible. Lysinger v. Hayer, 54 N.W. 145; Hervey v. Krost, 19 N.E. 125; Todd v. Johnson, supra; Sprague v. Martin, 13 N.W. 34; Schenck v. Gerlach, 101 Ill. 388; Oldfield v. Eulert, 36 N.E. 615.
A. E. Coger and Guy C. H. Corliss, for respondent.
Sannan was not a lawful redemptioner. Lysinger v. Hayer, 54 N.W. 145; Todd v. Johnson, 52 N.W. 864.
Statutory right of redeption must be strictly construed. Frem. Ex. (3rd. Ed.) Sec. 314; Wooters v. Pinkell, 25 N.E. 791; Boyle v. Dalton, 44 Cal. 332; Gilfillan v. Ryder, 22 Minn. 87; Morss v. Purvis, 68 N.Y. 225; Gilchrist v. Comfort, 34 N.Y. 235; 17 Am. & Eng. Enc. 1035; Tharp v. Forrest, 40 N.W. 718; Waller v. Harris, 20 Wend. 555; Lynch v. Burt, 132 F. 417; Robertson v. Van Cleave, 26 N.E. 899.
After the purchaser has accepted a pretended redemptioner's money, he cannot question the latter's rights. Freeman on Executions, Sec. 317; Carver v. Howard, 92 Ind. 173; In re Eleventh St. 81 N.Y. 436; McDonald v. Beatty, 10 N.D. 511, 88 N.W. 281; Bagley v. Ward, 37 Cal. 121; Sexton v. Rhames, 13 Wis. 99; Hervey v. Krosh, 19 N.E. 125; Todd v. Johnson, supra; Roose v. Gove, 77 P. 246; Bozarth v. Largent, 21 N.E. 218; Rush v. Mitchell, 32 N.W. 367 Clark v. Butts, 76 N.W. 199; San Jose Bank v. Bank of Medera, 54 P. 83; White v. Costigan, 63 P. 1075; 66 P. 78; Byer v. Healy, 50 N.W. 70; Gilbert v. Husman, 41 N.W. 3; Abadie v. Lobero, 36 Cal. 390; Eldridge v. Wright, 55 Cal. 531.
Such receipt of money does not make the payer a lawful redemptioner. Bank v. Bank, supra; Hughes v. Helms, 52 S.W. 460; Jarrell v. Brubaker, 49 N.E. 1050; Scobey v. Kinningham, 31 N.E. 355; People v. Rathbun, 15 N.Y. 528; Thomas v. Bowman, 29 Ill. 426; Byer v. Healy, 50 N.W. 70.
After foreclosure sale, mortgagor or judgment debtor has no interest mortgagable or subject to lien. Dickinson v. Kinney, 5 Minn. 409; Curriden v. Railway Co., 52 N.W. 966; Pollard v. Harlow, 71 P. 454; Robinson v. Thornton, 34 P. 120; Boynton v. Pierce, 37 N.E. 1024; Duff v. Randall, 48 P. 66; Wood v. Conrad, 50 N.W. 903.
An unlawful redemptioner's redemption need not be heeded. Hare v. Hall, 41 Ark. 381; People v. Ransom, 4 Denio. 145; Pamperin v. Scanlon, 28 Minn. 345; Parke v. Hush, 13 N.W. 668; Buchanan v. Reid, 45 N.W. 11; Hardin v. Kelly, 144 F. 353; Keller v. Coman, 44 N.E. 434; Jack v. Cold, 86 N.W. 374.
Payment to effect redemption, must be in money. Sec. 5546, Rev. Codes, 1905; Thorn v. City of San Francisco, 4 Cal. 127; Lytle v. Etherly, 18 Tenn. 389; People v. Baker, 20 Wend. 602; Bank v. Warren, 7 Hill. 91.
Sheriff is not the agent of a foreclosure purchaser, so as to bind the latter in an unlawful redemption. Bennett v. Wilson 55 P. 390; Waller v. Harris, 7 Paige, 167; Waller v. Harris, 20 Wend. 555; Byer v. Healy, 50 N.W. 70.
He is bound only by a legal redemption. Hardin v. Kelly, 144 F. 353; Waller v. Harris, supra; Hare v. Wall, 41 Ark. 380; Hughes v. Olson, 77 N.W. 42; Bovey DeLaittre Lbr. Co. v. Tucker, 50 N.W. 1038; Bennett v. Wilson, 55 P. 390; Byers v. McEniry, 91 N.W. 797; Nichols v. Tingstad, 10 N.D. 172, 86 N.W. 694; McDonald v. Beatty, 10 N.D. 511, 88 N.W. 281.
SPALDING, J. FISK, J., disqualified; HON. CHAS. F. TEMPLETON, Judge of the First judicial district, sitting by request.
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.
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 the same day, and the sheriff executed and delivered to said Sannan his certificate of redemption, dated that day, and recorded April 26, 1905. On the 3d day of March, 1905, Russell executed and delivered to Theo. P. Scotland & Co., incorporated, a seventh mortgage on said premises, which was not recorded till the 22d day of June, 1905. On the 17th day of June, 1905, Scotland & Co. assigned this mortgage to the defendant, Serumgard, and this assignment was recorded on the 22d day of June, 1905. On the 22d day of June, 1905, the defendant, Serumgard, as assignee of the Scotland mortgage, attempted to redeem the land in controversy from the foreclosure sale made on the fifth mortgage by serving and filing his affidavit and notice of redemption, which were recorded on that date, and tendering to the sheriff of Pierce county a banker's check for $ 3,187.50 as and for the total amount due on account of said foreclosure, together with interest and costs, and thereupon such sheriff,...
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