State ex rel. Forest Lake State Bank v. Herman

• Decision Date: 26 March 1917
• Citation: 161 N.W. 1017,36 N.D. 177
• Court: North Dakota Supreme Court

161 N.W. 1017

36 N.D. 177

STATE OF NORTH DAKOTA EX REL. FOREST LAKE STATE BANK, of Forest Lake, Minnesota, a Corporation, v. CHAS. HERMAN, Sheriff of Oliver County, North Dakota

Supreme Court of North Dakota

March 26, 1917

Rehearing denied March 27, 1917.

Appeal from District Court of Morton County, W. L. Nuessle, Special Judge.

Affirmed.

Pfeffer & Pfeffer, for appellant.

Where property has been sold under execution or mortgage, and redeemed by a redemptioner, another redemptioner may redeem from such lost redemptioner, even after the expiration of one year, provided his redemption is made within sixty days after the last redemption. Comp. Laws 1913, §§ 7753, 7755, 8085; State ex rel. Brooks Bros. v O'Connor, 6 N.D. 285, 69 N.W. 692.

Upon the expiration of the period of redemption, the proper officer must make and give to the purchaser or to the then holder of the certificate of sale, a deed of the real property sold. Comp. Laws 1913, § 7763.

Such sales pass no present title or right in or to the property until completed by deed. Comp. Laws 1913, §§ 7763, 8087; Smith v. Colvin, 17 Barb. 162.

"The deed on execution sales shall vest in the purchaser as good a title as was vested in the debtor." Comp. Laws 1913 § 7763; Swain v. Stockton Sav. & L. Soc. 78 Cal. 600, 12 Am. St. Rep. 118, 21 P. 365; National Bank v. Union Ins. Co. 88 Cal. 497, 22 Am. St. Rep. 324, 26 P. 509; Flanders v. Aumack, 32 Ore. 19, 67 Am. St Rep. 504, 51 P. 449; MacGregor v. Pierce, 17 S.D. 51, 95 N.W. 281; Kaston v. Storey, 47 Ore. 150, 114 Am. St. Rep. 912, 80 P. 217; Van Camp v. Weber, 27 S.D. 276, 130 N.W. 591; Farr v. Semmler, 24 S.D. 290, 123 N.W. 835; Page v. Rogers, 31 Cal. 294; Whithed v. St. Anthony & D. Elevator Co. 9 N.D. 224, 50 L.R.A. 254, 81 Am. St. Rep. 562, 83 N.W. 238; North Dakota Horse & Cattle Co. v. Serumgard, 17 N.D. 466, 29 L.R.A.(N.S.) 508, 138 Am. St. Rep. 717, 117 N.W. 453.

"The certificate of sale is only evidence of what transpired for the purposes of record notice, and as showing who is entitled to deed. It of itself conveys no title." North Dakota Horse & Cattle Co. v. Serumgard, 17 N.D. 466, 29 L.R.A.(N.S.) 508, 138 Am. St. Rep. 717, 117 N.W. 453; Macgregor v. Pierce, 17 S.D. 51, 95 N.W. 281; Farr v. Semmler, 24 S.D. 290, 123 N.W. 835; Van Camp v. Weber, 27 S.D. 276, 130 N.W. 591; Vandevender v. Moore, 146 Ind. 44, 44 N.E. 3; Bennett v. Matson, 41 Ill. 332; O'Brian v. Fry, 82 Ill. 274; Rockwell v. Servant, 63 Ill. 424; Vaughn v. Ely, 4 Barb. 159; Evertson v. Sawyer, 2 Wend. 507; Aldrich v. Sharp, 4 Ill. 261; Kihlholz v. Wolff, 8 Ill.App. 371; Johnson v. Baker, 38 Ill. 98, 87 Am. Dec. 293; Hays v. Cassell, 70 Ill. 669; Bowman v. People, 82 Ill. 246, 25 Am. Rep. 316; Roberts v. Clelland, 82 Ill. 538; Smith v. Colvin, 17 Barb. 161; Perry v. Burton, 111 Ill. 138; Horn v. Indianapolis Nat. Bank, 125 Ind. 381, 9 L.R.A. 676, 21 Am. St. Rep. 231, 25 N.E. 558; 27 Cyc. 1806; Robertson v. Van Cleave, 129 Ind. 217, 15 L.R.A. 68, 26 N.E. 899, 29 N.E. 781; Bouvier, Law Dict. 2 Bl. Com. 103, 195; 2 Crabb, Real Prop. *2 p. 942; Preston, Estate, 20; Black, Law Dict.; Washb. Real Prop. pp. 45, et seq.; Ross, Law Dict.; 2 Col. Litt. 345, 347; Neff v. Hagaman, 78 Ind. 57; McDonald v. Beatty, 10 N.D. 511, 88 N.W. 281.

One who assumes to be a redemptioner and acquires the rights of a redemptioner also assumes the obligations and liabilities of a redemptioner, and he must permit a qualified redemptioner to redeem from him within the period given by statute to a subsequent lien holder, and he is estopped to deny such rights. North Dakota Horse & Cattle Co. v. Serumgard, 17 N.D. 466, 29 L.R.A.(N.S.) 508, 138 Am. St. Rep. 717, 117 N.W. 453; Horn v. Cole, 51 N.H. 287, 12 Am. Rep. 111; Pom. Eq. Jur. §§ 802--804, 809--811; Fargo Gas & Coke Co. v. Fargo Gas & E. Co. 4 N.D. 219, 37 L.R.A. 593, 59 N.W. 1066.

Redemption laws are looked upon with favor, and where no injury is to follow, a liberal construction should be given them to the end that the property of the debtor may pay as many of his debts as possible. 17 Am. & Eng. Enc. Law, 1035; Lysinger v. Hayer, 87 Iowa 335, 54 N.W. 145; Hervey v. Krost, 116 Ind. 268, 19 N.E. 125; Todd v. Johnson, 56 Minn. 67, 57 N.W. 320; Sprague v. Martin, 29 Minn. 231; Schuck v. Gerlach, 101 Ill. 338; Oldfield v. Eulert, 148 Ill. 614, 39 Am. St. Rep. 231, 36 N.E. 615.

John F. Sullivan, for respondent.

The plaintiff, by failing to redeem from the execution sale within the year allowed for redemption, could not redeem from the sale later made under the mortgage foreclosure. Plaintiff's judgment lien or right to redeem thereunder was cut off by failure to redeem from the first sale of the premises within the time allowed by law, and plaintiff cannot thereafter be permitted to come in and try to redeem from another sale, and thus revive a right lost to it before. Past v. Rennier, 30 N.D. 1, 151 N.W. 763; White v. Rathbone, 73 Minn. 236, 75 N.W. 1046; Bartleson v. Thompson, 30 Minn. 161, 14 N.W. 795; Lowry v. Akers, 50 Minn. 508, 52 N.W. 922.

Time is of the essence of the redemption statutes, and a failure to redeem within the time allowed by statute and in the manner provided by statute absolutely bars a redemptioner from redeeming. Comp. Laws 1913, § 7754; Lynch v. Burt, 67 C. C. A. 305, 132 F. 417; Gilchrist v. Comfort, 34 N.Y. 235; Froelich v. Swafford, 33 S.D. 142, 144 N.W. 925; State ex rel. Brooks Bros. v. O'Connor, 6 N.D. 285, 69 N.W. 692; Francestown Sav. Bank v. Silver, 122 Iowa 685, 98 N.W. 498; Nichols v. Tingstad, 10 N.D. 172, 86 N.W. 694; Rucker v. Steelman, 73 Ind. 397; Little v. Worner, 11 N.D. 382, 92 N.W. 456; Haley v. Young, 134 Mass. 364; Trenery v. American Mortg. Co. 11 S.D. 506, 78 N.W. 991; Lowe v. Grinnan, 19 Iowa 193; MacGregor v. Pierce, 17 S.D. 51, 95 N.W. 281; McConkey v. Lamb, 71 Iowa 636, 33 N.W. 146; Gates v. Ege, 57 Minn. 465, 59 N.W. 495; McMillan v. Richards, 9 Cal. 365, 70 Am. Dec. 655; Whithed v. St. Anthony & D. Elevator Co. 9 N.D. 224, 50 L.R.A. 254, 81 Am. St. Rep. 562, 83 N.W. 238.

The only title that remains in the mortgagor or judgment debtor is merely the naked legal title, the purchaser holding all equitable title. Whithed v. St. Anthony & D. Elevator Co. supra.

The presumption is that the value of the interest of the debtor is the amount bid at the sale. Harvison v. Griffin, 32 N.D. 188, 155 N.W. 655.

BIRDZELL, J. GRACE, J., ROBINSON, J., dissenting.

OPINION

BIRDZELL, J.

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, Minnesota, 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 sixty 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.

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 consequence 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...