State ex rel. Forest Lake State Bank v. Herman
| Decision Date | 26 March 1917 |
| Citation | 161 N.W. 1017,36 N.D. 177 |
| Parties | STATE ex rel. FOREST LAKE STATE BANK v. HERMAN, Sheriff. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
One W. gave first and second mortgages on 120 acres of land and a first mortgage on 40 acres. The first mortgages were assigned to R. and the second mortgage to D. M. obtained a judgment against W. and sold the land under execution subject to the prior mortgages. F. obtained a subsequent judgment. M. assigned the certificate of execution sale to P. R. foreclosed the first mortgages, and D. and P. redeemed from the foreclosure sales. D. assigned his certificate of redemption and mortgage to M. After the expiration of the period of one year without redemption from the execution sale and within 60 days from the redemptions by D. and P., F. attempted to redeem by paying to the sheriff the amount of all prior liens. Held, that at the expiration of the period for redemption from the execution sale F. ceased to be a redemptioner.
Sections 7753-7755, 7757, and 7763 of the Compiled Laws of 1913 construed, and held to limit the exercise of the right of redemption to the period of one year from the day of sale, with a permissible extension applicable only in case of a redemption by a redemptioner within a year from the day of sale.
Sections 7757 and 7763 of the Compiled Laws of 1913 construed, and held that upon the expiration of the period for redemption the full beneficial ownership of the debtor passes to the purchaser at the execution sale, and that the execution of the sheriff's deed is only a ministerial act required to complete the formal transfer of the naked legal title.
One who assumes the position of a redemptioner to protect a right that could be protected in some other manner is not estopped to assert his legal rights under a sheriff's certificate, as against a person who had, at the time of the redemption, no interest in the property, and who has since acquired no interest in reliance upon the assumed relationship.
A writ of mandamus will not issue to compel the execution of a sheriff's deed to one who is not a redemptioner, nor when it is the duty of the sheriff under the statute to issue the deed to another.
Appeal from District Court, Morton County; W. L. Nuessle, Special Judge.
Mandamus by the State of North Dakota, on relation of the Forest Lake State Bank, of Forest Lake, Minn., against Chas. Herman, Sheriff of Oliver County, N. D. Writ denied, petition dismissed, and relator appeals. Affirmed.
Jno. F. Sullivan, of Mandan, for appellee.
This is an appeal from a judgment of the district court of Morton county denying a writ of mandamus and dismissing the petition. The petition prayed the issuance of a writ directed to the defendant Chas. Herman, sheriff of Oliver county, requiring him to execute sheriff's deeds to the relator covering certain lands which the relator claimed to have redeemed from execution and foreclosure sales in circumstances that will appear in the following brief statement of the essential facts: One Charles L. Wright was the owner of 160 acres of land, which he mortgaged in the year 1909 by executing two first mortgages on different parcels thereof, which mortgages were subsequently assigned to one Regan. He also gave a second mortgage upon a 120-acre tract which was later assigned to one Robert Dunn. In February, 1913, the Mandan Mercantile Company levied an attachment against the land, and in December of the same year sold the same by virtue of a special execution in satisfaction of a judgment obtained by the Mercantile Company against Wright. A sheriff's certificate of sale was duly issued to the judgment creditor. On March 25, 1913, the Forest Lake State Bank, of Forest Lake, Minn., also levied an attachment against the same land as the property of Wright, and in February of the following year a judgment in its favor was duly obtained against Wright. On January 17, 1915, Regan, the assignee of the first mortgage, caused 120 acres of the land to be sold under the mortgage, and a sheriff's certificate was duly issued to him. On April 18, 1914, Regan also caused the remaining parcel of 40 acres to be sold under his first mortgage, and a sheriff's certificate of sale as to this tract was also issued to him. Sheriff's deeds have never been issued upon any of these certificates of sale. The Mandan Mercantile Company assigned its certificate of execution sale to one Parsons. Robert Dunn, the owner of the second mortgage upon the 120-acre tract, redeemed in due time from the first mortgage foreclosure sale as to this tract, and Parsons redeemed in due time from the first mortgage foreclosure sale of the 40-acre tract. Robert Dunn assigned his certificate of redemption together with his second mortgage to the Mandan Mercantile Company, and within 60 days after the redemptions effected by him and by Parsons the Forest Lake State Bank, subsequent judgment creditor of Wright, attempted to redeem by paying to the sheriff the amount necessary to discharge all liens in favor of the prior redemptioners. The sheriff executed to the bank, the relator herein, a certificate of redemption, but refuses to issue deeds, owing to the refusal of the mercantile company and Parsons to receive the redemption money and to their claim of right to deeds pursuant to the mortgage and execution sales.
[1] More than one year having elapsed after the execution sale before any attempt was made to redeem therefrom, it is contended on behalf of the certificate holders that they are entitled to sheriff's deeds, even though they had assumed the position of redemptioners in order to protect their interests from the consequences of the foreclosure of prior mortgages. The contrary contention of the relator is based upon the proposition that when one becomes a redemptioner for one purpose he is a redemptioner for all purposes, and, in addition, the relator relies upon the generally accepted doctrine that redemptions are favored, to the end that the property of the debtor may be made to pay as many of his debts as it will. However strongly these principles may appeal to the sense of justice, and however strong the temptation may be to regard them as controlling in particular cases, we cannot lose sight of the fact that the Legislature has seen fit, and we dare say wisely, to proscribe definite rules of limitation governing redemptions. These rules are as binding upon the courts as any other within the proper sphere of legislation, and they must be applied according to their true intention in all cases to which they are applicable. We are mindful, however, that the statutes governing redemptions do not wholly remove the subject-matter of redemption from the operation of the doctrines of equity, and that in any particular case where a ground for equitable relief is shown to exist the appropriate decree will not be withheld, because of encroachment upon the literal meaning of a statute. This court has, in the exercise of its equitable jurisdiction permitted redemptions where the statutory period has elapsed , but circumstances were shown to be present warranting equitable relief.
[2][3] In the case before us we must first ascertain the meaning of the statute to determine whether or not a fair construction warrants the issuance of the writ asked for. The sections of the statute bearing upon the question are as follows: Section 7753, Compiled Laws of 1913:
“Property sold subject to redemption, or any part sold separately, may be redeemed in the manner hereinafter provided by the following persons, or their successors in interest:
1. The judgment debtor, or his successors in interest.
2. A creditor having a lien by judgment, mortgage or otherwise on the property sold or on some share or part thereof, subsequent to that on which the property was sold.
The persons mentioned in the second subdivision of this section are in this chapter termed redemptioners.”
Section 7754 provides:
“The judgment debtor or redemptioner may redeem the property from the purchaser within one year after the sale. * * * ”
Section 7755, in so far as applicable, is as follows:
“If the property is so redeemed by a redemptioner, another redemptioner may, even after the expiration of one year from the day of sale, redeem from such last redemptioner; provided, the redemption is made within sixty days after such last redemption.”
Section 7757 reads:
“If the property is not redeemed according to law, the purchaser or his assignee or the redemptioner, as the case may be, is entitled to a sheriff's deed of the property and it shall be the duty of the sheriff to execute and deliver such deed immediately after the time for redemption has in each case expired.”
Section 7763 reads in part as follows:
The petitioner must fail in this action unless it is a redemptioner, or, if not such redemptioner, unless there is some equitable reason for extending the period of redemption in its favor. In determining whether or not under the statutes above quoted the petitioner is a redemptioner and as such entitled to redeem from the mortgage foreclosure sales, we must look to the effect of the failure to redeem from the execution sale. Section 7753 names two classes of persons who can redeem. The first is the judgment debtor or his successors in...
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