Stocker v. Puckett

• Decision Date: 22 July 1903
• Citation: 96 N.W. 91,17 S.D. 267
• Parties: JOHN STOCKER, Plaintiff and respondent, v. BENJAMIN F. PUCKETT, Defendant and appellant.
• Court: South Dakota Supreme Court

17 S.D. 267

96 N.W. 91

JOHN STOCKER, Plaintiff and respondent,

v.

BENJAMIN F. PUCKETT, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, McPherson County, SD Hon. Loring E. Gaffy, Judge Affirmed James M. Brown Attorneys for appellant. Herreid & Williamson Attorneys for respondent. Opinion filed July 22, 1903

FULLER, J.

This action in equity to quiet title to real property described in the complaint terminated below in a judgment for plaintiff, and the defendant appeals.

Respondent’s motion to dismiss the appeal is denied upon its merits, and for the reason that the grounds relied upon are not sufficiently substantiated by the affidavits and record properly before us. The averments of appellant’s answer and the admissions of respondent concerning certain redemptions by a judgment creditor from the concurrent foreclosure of two mortgages on the property, by virtue of powers of sale regularly pursued, eliminate all questions as to the validity of the foreclosure and redemption proceedings, upon which respondent bases his title under a sheriff’s deed.

The essential facts may thus be stated in connection with the statutory provisions to be construed: On the 29th day of April, 1899, the mortgages were foreclosed, and Wilhelmina Weisser, being then the owner of the premises, was entitled to redeem at any time within one year from the date of sale. Trenery v. American Mortgage Company, 78 N.W. 991. On the 28th day of April, 1900, Jacob Gutjahr, a creditor having a lien by judgment, redeemed from the foreclosure sales, and appellant, as the grantee of Wilhelmina Weisser, attempted to redeem from such redemptioner on the 27th day of June, 1900. While the sheriff accepted appellant’s money and issued the usual certificates of redemption, he conveyed the premises to Gutjahr, by sheriff’s deed on the 25th day of August, 1900.

It is contended by his counsel that appellant, as the successor of the mortgagor, lawfully redeemed from Gutjahr, and, there being no further redemptions, was entitled to the sheriff’s deed at the expiration of 60 days. Fourteen months having intervened between the foreclosure sale and appellant’s effort to redeem, the exact point presented is whether his right to redeem expired one year from the date of sale. The statute expressly limits the term “redemptioner” to a mortgagee or judgment creditor having a lien subsequent to that on which the property was sold, and provides...