Orr v. Sutton

• Decision Date: 09 October 1914
• Docket Number: No. 18433[55].,18433[55].
• Citation: 127 Minn. 37,148 N.W. 1066
• Parties: ORR et al. v. SUTTON et al.
• Court: Minnesota Supreme Court

127 Minn. 37

148 N.W. 1066

ORR et al.

v.SUTTON et al.

No. 18433[55].

Supreme Court of Minnesota.

July 17, 1914.

Rehearing Denied Oct. 9, 1914.

Appeal from District Court, St. Louis County; Bert Fesler, Judge.

Action by Charles N. Orr and others against William Sutton and others, to quiet title. Plaintiffs prevailed, and from denial of new trial defendants appeal. Affirmed.

See, also, 119 Minn. 193, 137 N. W. 973,42 L. R. A. (N. S.) 146.

Syllabus by the Court

A proposition decided upon a former appeal becomes the law of the case, and should not be re-examined in a subsequent appeal in the same action.

The pleading and evidence required a finding on the issue of tender of payment by the judgment debtor of the judgment under which plaintiffs effected redemption. If the findings in this case are to be construed to the effect that by direct authority of the judgment debtor a tender in lawful money of the full amount of plaintiffs' judgment was not made to them personally prior to the time when they could use the same for redemption purposes, they are not justified by the evidence.

No one in the line of redemptioners, nor an intermeddler, may, by tender of payment of a judgment, impair or destroy a judgment creditor's right to use the judgment to effect redemption.

To destroy a judgment crditor's right to use the judgment as a means for obtaining certain land through redemption, it is not indispensable that the judgment debtor, in addition to tender of payment, bring suit to compel satisfaction of the judgment and deposit the money tendered in court.

A tender by the judgment debtor of the full amount due on a judgment, under which the judgment creditor has filed an intention to redeem land, before the arrival of the time when the judgment could be used for such purpose, and under circumstances clearly disclosing that both parties appreciated the purpose of such tender, destroys the right of the judgment creditor to thereafter use the judgment as a basis for redeeming such land.

But if a redemption is made by a judgment creditor whose right to make it, though good on the face of the record, has, in fact, been destroyed by the tender of the payment of the judgment, the title of the purchaser at the sale nevertheless passes to him if the holder thereof accepts the redemption money with full knowledge of the tender.

Assuming a valid tender proven it is held:

(a) That the defendant Torinus, the holder of the title acquired through the mortgage foreclosure sale, by accepting the redemption money paid by plaintiffs, judgment creditors, with full knowledge of the facts showing that they had no right to redeem, thereby suffered plaintiffs to succeed to his title and cannot now question the validity of their redemption.

(b) That the evidence does not show any rights or equities which required the court to relieve the defendant William Sutton, junior to plaintiffs in the line of redemptioners, who attempted to redeem under a mortgage, recorded without the prepayment of the registry tax. Nor has Sutton alone, or in conjunction with any other defendant, any equities through which to attack plaintiffs' title.

(c) That the defendant Sauntry, the owner, after the expiration of the year of redemption had no interest in the land so as to question plaintiffs' redemption, and his right to have the land applied to the payment of such of his debts as were liens thereon depended entirely upon the lienholders making redemption in strict conformity with the statute. J. N. Searles and Manwaring & Sullivan, all of Stillwater, and Butler & Mitchell, of St. Paul, for appellants.

William G. White, of St. Paul, for respondents.

HOLT, J.

Action to quiet title. William Sauntry owned an undivided half of valuable mining lands in St. Louis county, this state, which he mortgaged to secure the sum of $30,000. He defaulted and the mortgage was duly foreclosed by advertisement. The year for redemption expired on September 20, 1911. The rights acquired by the purchaser at the sale were, on the last-named date, held by Louis E. Torinus, the sheriff's certificate having been duly assigned to him. The mortgagor was insolvent, and unsatisfied judgments existed against him. Transcripts of the following judgments were docketed in St. Louis county prior to September 21, 1911: (1) A transcript of a judgment in favor of Nathan E. Franklin for $8,243.34, docketed July 22, 1910. This judgment was assigned to Louis E. Torinus, and proper record made on September 23, 1911. (2) A transcript of judgment in favor of Fred Rossiter for $1,589.35, docketed October 24, 1910. (3) A transcript of a judgment in favor of John J. Kilty for $329, docketed at 5:15 p. m. September 20, 1911, together with proper records showing an assignment of the judgment to William Sutton, September 18, 1911. And (4) a transcript of a judgment in favor of Robert W. Hunt & Co. for $741.38, docketed at 5:19 p. m. September 20, 1911, with proper records showing an assignment of this judgment to plaintiffs January 11, 1911. In the evening of September 20, 1911, William Sauntry executed a second mortgage on the land to William Sutton to secure a demand note for $50. It appears that this indebtedness represented a portion of attorney's fees owing to one Grannis from Sauntry, which Grannis assigned to William Sutton. This mortgage was filed in the office of the register of deeds at 10 p. m. on the same day. But no mortgage registry tax was paid thereon until long afterwards. No registry number was placed on the mortgage, nor was it indexed until the next morning, after it then had been taken to the county treasure and he had certified thereon that it was exempt from taxation. Proper notices of intention to redeem were filed, so that the respective judgment creditors were placed in line of redemptioners in the order above given and the mortgagee William Sutton last, provided each had a good right to redeem. Sauntry, the mortgagor and owner, did not redeem. Louis E. Torinus redeemed on Sept. 25, 1911, as assignee of the Franklin judgment. Fred Rossiter the next in line did not offer to redeem. Nor did William Sutton make any attempt to redeem as assignee of the Kilty judgment. On October 5, 1911, plaintiffs, as assignees of the Robert W. Hunt & Co. judgment, redeemed; and on October 9, 1911, William Sutton in turn redeemed as mortgagee in the $50 mortgage mentioned. The sheriff upon each of these redemptions issued his certificate to the redemptioner. Ocotober 10, 1911, William Sutton, claiming to be the owner of the land under his redemption, mortgaged the same to Louis E. Torinus to secure the payment of $10,000. The complaint sets out the various matters very fully, alleges conspiracy between the defendants to circumvent plaintiffs and deprive them of their right to redeem, and asks that the claims of each defendant to the land be barred, and the cloud cast upon plaintiffs' title by the Sutton redemption, the Torinus mortgage, and the records thereof be removed. In addition to Torinus, Sutton, and Sauntry, the latter's wife, and one Lyman Sutton are made defendants, also the lessees of the mine, but the latter are in no way affected. The court found plaintiffs to be the owners; that the defendants had no right, title, or lien in or to the land, and directed judgment, quieting title in plaintiffs and removing the cloud cast on their title by the record of the Sutton redemption and mortgage and the mortgage to Torinus. Defendants appeal from the order denying their motion for a new trial.

The defendants contend for a new trial upon three grounds: (1) No mortgage registry tax was required upon the $50 mortgage under which Sutton redeemed; hence his redemption vested title in him. (2) Plaintiffs lost their right to redeem by the tender of payment of their judgment prior to the time when such right could be exercised. (3) Even if the tax be held applicable to this mortgage, equities will relieve defendants, since its nonpayment was the result of an honest mistake, induced by the conduct of the administrative officers of the state and county, and the tax was paid before the trial.

[1] In a former opinion in this case (Orr v. Sutton, 119 Minn. 193, 137 N. W. 973,42 L. R. A. [N. S.] 146), we held that this mortgage, upon which the registry tax imposed by chapter 328, Laws of 1907 (Gen. St. 1913, §§ 2301-2309), was not paid before it was recorded, furnished no sufficient legal basis for redemption from the foreclosure sale here involved. This was following and applying the rule announced in State v. Fitzgerald, 117 Minn. 192, 134 N. W. 728, that all mortgages, including those of $50 and less, are subject to the registry tax. We are earnestly importuned to re-examine the question, on the ground that that decision is wrong and that the court was led astray because counsel on both sides designedly took the position that the law violated the Constitution unless it was held applicable to all mortgages, however small. Even if the court, as now constituted, entertained doubts concerning the soundness of the Fitzgerald decision, a well-settled rule of law stands in the way of any re-examination of the question upon this appeal, for on this proposition our former decision herein is the law of the case and binding on us. There is nothing in the situation which calls for a deviation from this well-established doctrine. No application was made for reargument when the former appeal was determined. In Terryll v. City of Faribault, 84 Minn. 341, 87 N. W. 917, it is said:

‘The case was here on a former appeal, and the notice of claim for damages was then held sufficient. 81 Minn. 519, 84 N. W. 458. That decision, whether right or wrong, must be treated as the law of the case, and the question cannot be re-examined at thie time.’

The same rule was stated thus in Bradley v. Norris, 67 Minn. 48, 69 N. W. 624:

‘This court has the right to overrule the decision made on the former appeal in some other case, but...