Parker v. Dacres

• Decision Date: 05 March 1889
• Citation: Parker v. Dacres, 130 U.S. 43, 9 S.Ct. 433, 32 L.Ed. 848 (1889)
• Parties: PARKER v. DACRES et al. 1
• Court: U.S. Supreme Court

130 U.S. 43

9 S.Ct. 433

32 L.Ed. 848

PARKER v. DACRES et al.¹

March 5, 1889.

John H. Mitchell, for appellant.

W. W. Upton, C. B. Upton, and B. L. Sharpstein, for appellees.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

The plaintiff bases his right to redeem upon certain sections of the civil practice act of Washington Territory, approved November 13, 1873, (Laws Wash. T. 1873, p. 94,) relating to 'sales under execution,' by one of which (section 364) it is declared that a sale of real property, when the estate is less than a leasehold of two years' unexpired term, shall be absolute, but 'in all other cases such property shall be subject to redemption as hereinafter provided in this chapter.' That chapter directs the sheriff to deliver to the purchaser a certificate of the sale, and gives the right of redemption to a judgment debtor or his successor in interest, in the whole or in part of the property separately sold, and to a creditor having a lien on any portion of the property separately sold, by judgment, decree, or mortgage, subsequent in time to that for which the property was sold. Section 365. The persous last described are designated by the statute 'redemptioners.' By another section the judgment debtor or redemptioner is permitted to redeem the property within six months from the date of the order confirming the sale, by paying the amount of the purchase, with interest at the rate of 2 per cent. per month from the time of sale, together with any taxes paid by the purchaser; and, if the purchaser be also a creditor having a lien prior to that of the redemptioner, the amount of such lien, with interest. Section 366. A succeeding section prescribes the mode of redeeming, namely: '(1) The person seeking to redeem shall give the purchaser or redemptioner, as the case may be, two days' notice of his intention to apply to the sheriff for that purpose. At the time and place specified in such notice such person may redeem by paying to the sheriff the sum required. The sheriff shall give the person redeeming a certificate as in case of sale on execution, adding therein the sum paid on redemption, from whom redeemed, and the date thereof. A party seeking to redeem shall submit to the sheriff the evidence of his right thereto, as follows: (2) Proof that the notice required by this section has been given to the purchaser or redemptioner, or waived. (3) It he be a lien creditor, a copy of the docket of the judgment or decree under which he claims the right to redeem, certified by the clerk of the court where such judgment or decree is docketed, or, if he seeks to redeem upon mortgage, the certificate of the record thereof. (4) A copy of any assignment necessary to establish his claim, verified by the affidavit of himself or agent showing the amount then actually due on the judgment, decree, or mortgage. (5) If the redemptioner or purchaser have a lien prior to that of the lien creditor seeking to redeem, such redemptioner or purchaser shall submit to the sheriff the like evidence thereof, and of the amount due thereon, or the same may be disregarded.' Section 369. In the same act is a separate chapter regulating foreclosures of mortgages. None of the provisions of that chapter, however, give the right of redemption after a sale under a decree of foreclosure. But it is provided that 'the payment of the mortgage debt with interest and costs at any time before sale shall satisfy the judgment.' Section 563. The contention of the plaintiff is that the provisions of the chapter relating to 'sales under execution,' so far as they refer to the right of redemption, apply to sales under decrees of foreclosure. In support of this view, they cite decisions of the supreme court of California construing similar statutory provisions, from which, it is claimed, the statute of Washington Territory was copied. Kent v. Laffan, 2 Cal. 595, (1852;) Harlan v. Smith, 6 Cal. 173, (1856;) McMillan v. Richards, 9 Cal. 365, (1858;) Gross v. Fowler, 21 Cal. 395, (1863.) On the other hand it is insisted that the civil practice of 1873, so far as it related to sales under execution and to sales under decrees for the foreclosure of mortgages, was copied substantially from Iowa statutes, which, it is contended, did not give the right to redeem after sale under a foreclosure decree. Stoddard v. Forbes, 13 Iowa, 296, (1862;) Kramer v. Rebman, 9 Iowa, 114, (1859.)

In the view we take of this case, it is unnecessary to express an opinion whether the provision relating to sales under execution, properly interpreted, gave a right of redemption after sale under a decree of foreclosure. If it did not, the decree below must be affirmed, for a right to redeem, after sale, does not exist unless given by statute. Counsel for the plaintiff speaks of a common-law right of redemption after sale that attaches in the absence of any statutory provision on the subject. We are not aware of any such right existing at common law, or in the system of equity as administered in the courts of England previous to the organization of our government. It is a mistake to suppose that the case of Clark v. Reyburn, 8 Wall. 319, recognizes a right of redemption after a sale under a foreclosure decree, independently of statute. It is there stated that 'by the common law, when the condition of the mortgage was broken, the estate of the mortgagee became indefeasible,' and that 'equity interposed and permitted the mortgagor, within a reasonable time, to redeem upon the payment of the amount found to be due;' also that, according to the settled practice in equity, when proceedings to foreclose were not regulated by statute, this right to redeem before sale is fixed by the primary decree, and that...