Rambeck v. La Bree
| Decision Date | 13 July 1923 |
| Docket Number | 23,488 |
| Citation | 194 N.W. 643,156 Minn. 310 |
| Parties | O. A. RAMBECK v. W. J. LA BREE, AS SHERIFF OF PENNINGTON COUNTY, MINNESOTA AND ANOTHER; FARMERS STATE BANK OF GOODRIDGE, APPELLANT |
| Court | Minnesota Supreme Court |
Action in the district court for Pennington county to compel defendant sheriff to accept money tendered; to cancel his certificate of redemption in favor of defendant bank; to annul the record of it and to have plaintiff adjudged the owner of the land. The demurrer of defendant bank to the complaint was overruled. Plaintiff's motion to strike out the answer of defendant bank as sham, irrelevant and frivolous and directing judgment in favor of plaintiff was granted, Grindeland, J. From the judgment entered pursuant to the order for judgment, Farmers State Bank of Goodridge appealed. Reversed.
Application of statutory provision as to time for doing act.
1. In determining the consequences of a disregard of a statutory provision as to time, a court must seek to ascertain the legislative intention. It will consider the language of the statute, the subject matter, the importance of the provision and the object intended to be secured. If the provision does not go to the essence of the thing to be done, or if there are no negative words restricting the doing of an act after the time fixed by the statute, the provision will usually be held directory.
Failure to file papers produced upon making redemption from sale.
2. A failure to observe the requirement of section 8148, G.S 1913, that the papers which must be produced in redeeming from a mortgage foreclosure sale shall be filed within 24 hours after redemption is made, does not invalidate the redemption when the rights of subsequent redemptioners are not thereby impaired. If the documents to which section 8148 refers are on file when a junior creditor redeems, he cannot question the validity of a prior redemption solely because the filing was not made within the time prescribed by the statute.
Failure of sheriff's certificate to name amount claimed due on redemptioner's lien.
3. The omission from the sheriff's certificate of redemption of a statement of the amount claimed to be due on a redemptioner's lien, as provided by section 8149, G.S 1913, does not invalidate the redemption as to a junior creditor, if the affidavit required by section 8148 is on file in the office of the register of deeds when the junior creditor redeems.
J. M. Bishop, for appellant.
Perl M. Mabey and H. O. Chommie, for respondent.
Appeal from a judgment canceling a certificate of redemption issued to the appellant by the defendant La Bree, as sheriff of Pennington county.
On November 26, 1915, one Ole Oveson owned a quarter section of land in Pennington county and mortgaged it to a bank at Thief River Falls. On November 1, 1919, Olaf Oveson gave a second mortgage to the appellant, and on July 30, 1920, a third mortgage to the respondent. The first mortgage was foreclosed by advertisement and the land sold on June 11, 1921, to the Savings Loan & Trust Company, a Wisconsin corporation, for $2,285.67.
The Ovesons failed to redeem. June 11, 1922, fell on a Sunday, hence the time within which they might have redeemed did not expire until June 12. On May 17, 1922, appellant duly filed notice of its intention to redeem, and respondent duly filed a like notice on June 12, 1922. On June 15 appellant paid $2,420.78 to the sheriff in redemption of the land from the sale to the trust company. It produced to the sheriff its mortgage from Oveson. Attached to it was an affidavit made by appellant's cashier, stating that the papers were produced for the purpose of making redemption pursuant to appellant's notice of its intention so to do, and that the amount then actually due on its mortgage was $1,261.72. The sheriff accepted the redemption money and signed a certificate of redemption, but did not have his signature witnessed and did not acknowledge the execution of the certificate. On June 15 he deposited the incomplete certificate in the office of the register of deeds, where it remained until June 19, when it was properly witnessed and acknowledged and placed on record. The certificate did not contain a statement of the amount claimed to be due on appellant's mortgage at the date of redemption. It stated that appellant redeemed as a junior mortgage. In all other respects it complied with section 8149, G.S. 1913.
The mortgage and affidavit of appellant's cashier were not filed as required by section 8148, G.S. 1913. By mistake the sheriff mailed these papers to the Farmers' State Bank of Mavie, Minnesota. They were received on June 16 and mailed to appellant on the same day. It received them on June 17 and filed them with the register of deeds on June 19 at 5 o'clock p.m. On June 19 at 10 o'clock a.m. respondent's attorneys examined the files and records in the office of the register of deeds and were shown and examined the incomplete certificate of redemption the sheriff had issued. Respondent did not attempt to redeem on the nineteenth, but on the following day at 4 o'clock p.m. he produced to the sheriff his mortgage and an affidavit of the amount due thereon and tendered $2,421.90 in redemption of the land. Because he did not include the amount due on appellant's mortgage, the sheriff refused to receive the sum tendered. Respondent has kept the tender good and insists that the sheriff should have accepted it because appellant's redemption was invalid.
This action was brought to compel the sheriff to accept the money tendered and execute a certificate of redemption to respondent, to cancel the certificate issued to appellant and annul the record thereof, and to have respondent adjudged the owner of the land in fee. The facts stated were set out in the pleadings and in affidavits produced by the parties at the hearing of a motion made by respondent to strike out appellant's answer as frivolous. The motion was granted and judgment as demanded was entered as for want of an answer.
Respondent contends that appellant's redemption was invalid for two reasons: (1) Because the mortgage and the affidavit of appellant's cashier were not filed within 24 hours after redemption was made; (2) because of the omission from the sheriff's certificate of redemption of a statement of the amount claimed to be due on appellant's mortgage when it redeemed and the absence of a more particular statement of its lien. The trial judge was of the opinion that the statutory provisions relative to these two matters were mandatory and that the failure to comply with them was fatal to the redemption.
In Sedgwick's Statutory Law, it is said [2d ed. pp. 317-318] that when a strict compliance with the provisions of a statute with respect to time does not appear essential to the judicial mind, a proceeding will be held valid, although a command of the statute was disregarded. The questions which arise under this head are not properly those of construction, but rather of application. The statute is sufficiently clear. The only point is what shall be the consequence of a disobedience of its direction. The writer concludes [page 325] by expressing the opinion that the legislature should say what consequences should result from a disregard of a provision of a statute. When none are specified, a court should seek to ascertain the legislative intention. The language of the statute, the subject matter, the importance of the provision and the object intended to be secured should be considered. 3 Dunnell, Minn. Dig. § 8954. If the provision does not go to the essence of the thing to be done, or if the act is to be done within a certain time without any negative words to restrict the doing of it afterwards, the provision is usually held to be directory. 25 R.C.L. 767.
This court has said that as a general rule the statute requiring an act to be done within a certain time should be regarded as directory unless the limitation of time is essential to the protection of private rights, Johnson v. Northwestern L. & B. Assn. 60 Minn. 393, 2 N.W. 381, and that a statute mandatory in language may be merely directory, depending on the object to be subserved by the...
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