Pace v. Malonee

• Decision Date: 07 October 1963
• Docket Number: No. 4611,4611
• Citation: 79 Nev. 365,385 P.2d 353
• Parties: C. M. PACE, Appellant, v. Rudy MALONEE, Respondent.
• Court: Nevada Supreme Court

Page 353

385 P.2d 353

79 Nev. 365

C. M. PACE, Appellant, v. Rudy MALONEE, Respondent.

No. 4611.

Supreme Court of Nevada.

Oct. 7, 1963.

Rehearing Denied Dec. 2, 1963.

Foley Brothers, Ralph Denton, Las Vegas, for appellant.

Michael J. Wendell, Las Vegas, for respondent.

THOMPSON, Justice.

This case is here on appeal from a judgment entered in a quiet title action. Malonee, a judgment debtor whose real property was sold under execution to Pace, the highest bidder, (N.R.S. 21.150), claimed that he had redeemed it in the manner and within the time required by statute. Pace defended below, asserting that Malonee had neither tendered nor paid the full amount required for redemption within one year after the execution sale (N.R.S. 21.210), and that Malonee, therefore, had lost his statutory right of redemption. After trial the district court found for Malonee. It ordered that the sheriff's deed to Pace be set aside and that a certificate of redemption be granted Malonee upon payment of $3,808, the amount necessary for redemption. However, in doing so, it specifically found that $133.78 of the total sum needed to redeem was not delivered by Malonee to the sheriff until three days after the redemption period had run. Because of this fact the appellant Pace insists that the judgment was in error. We agree.

As a general rule a statutory redemption cannot be allowed after the expiration of the period permitted therefor by statute. Bunting v. Haskell, 152 Cal. 426, 93 P. 110; cf. Daly v. Lahontan Mines Co., 39 Nev. 14, 23, 151 P. 514, 516, 158 P. 285. However, in special circumstances, an independent action may permit redemption after the statutory period has run if equitable grounds exist to support the relief requested. Graffam v. Burgess, 117 U.S. 180, 6 S.Ct. 686, 29 L.Ed. 839 (where the court found a design to mislead the complainant and lull her into security and thus prevent her from redeeming within the time prescribed by law); Benson v. Bunting, 127 Cal. 532, 59 P. 991 (mutual mistake as to the time allowed for redemption); Smith v. Schuler-Knox Co., 85 Cal.App.2d 96, 192 P.2d 34 (where court redemption was denied because, inter alia, the mistake was not mutual). In such case the redemption is authorized by decree of court and does not find its support in the provisions of the statute, but in the decree, and is governed thereby. Bunting v. Haskell, supra.

In the present case Malonee, the plaintiff, made no claim by pleading or subsequent proof that his right to redeem during the statutory period was prevented by fraud, mistake, or any other circumstance calling for equitable intervention. To the contrary. His complaint alleged, in effect, that he had exercised his right of redemption in the manner and within the time required by statute. He offered evidence that the full amount of money needed for redemption had, in fact, been deposited with the sheriff before the one year redemption period had run. This evidence, however, was disputed. A record of the sheriff's office indicated that $133.78 of the total sum needed for redemption was received three days late. The trial judge...