Sucker v. Cranmer

• Decision Date: 09 October 1914
• Docket Number: No. 18737 [238].,18737 [238].
• Citation: 127 Minn. 124,149 N.W. 16
• Parties: SUCKER v. CRANMER et al.
• Court: Minnesota Supreme Court

127 Minn. 124

149 N.W. 16

SUCKER

v.CRANMER et al.

No. 18737 [238].

Supreme Court of Minnesota.

Oct. 9, 1914.

Appeal from District Court, Hennepin County; Chas. S. Jelley, Judge.

Action by Adolph Sucker against S. H. Cranmer and others. From an order sustaining defendants' demurrer to the complaint, plaintiff appeals. Reversed.

Syllabus by the Court

A mortgage, containing stipulations that the mortgagee might pay taxes and charge the amount to the mortgagors, or at his option buy and hold in his own right tax title on the mortgaged premises, was foreclosed and at the sale plaintiff, the assignee of the mortgagee, bid in the premises for the amount of the debt and expenses of sale; while the year of redemption was running plaintiff redeemed from tax sales and paid taxes to prevent the penalty from being added, but through inadvertence failed to file and furnish the affidavit required by section 8172, Gen. St. 1913, so that defendants, the mortgagors, within the year, redeeming, as owners, did so without reimbursing plaintiff. In this action to recover of defendants the sums thus paid by plaintiff subsequent to the sale and to enforce a lien therefor against the land it is held that, even though the court cannot restore the statutory remedy lost through plaintiff's failure to comply with the requirements of the statute, and though it be conceded, without so deciding, that under the terms of the mortgage and the facts of the case no personal claim exists against defendants, still plaintiff's payment of the tax liens was, under the mortgage and statute, authorized and lawful, so that in equity he should be subrogated to the rights of the holders of such liens. H. R. Hewitt and C. J. Cahaley, both of Minneapolis, for appellant.

S. H. Cranmer, of Minneapolis, for respondents.

HOLT, J.

Plaintiff is the assignee of a real estate mortgage executed by defendants. The latter covenanted to pay the taxes and keep the buildings insured for further security until all obligations under the mortgage were discharged, and, in case of failure to perform these covenants, it was provided that the mortgagee might effect the insurance and pay the taxes, and the sums so disbursed should be charged against the mortgagors, or the then owner of the premises, and should become an additional lien secured by the mortgage and enforced at the same time and in the same manner as the original indebtedness, or the mortgagee might at ‘his option purchase and hold solely in his own right any and all taxes and tax titles' on the premises. Default was made and the mortgage was foreclosed. Plaintiff became the purchaser, having bid in the property for enough to wipe out the debt and expenses of sale. After the sale, and while the year of redemption was running, plaintiff paid $267.61 in redemption of tax certificates, acquired by Hicks & Co. on the mortgaged premises subsequent to the execution of the mortgage, and he also paid $112.80 taxes, about to be subjected to the statutory penalty, all on account of the failure of defendants to perform their covenant in regard to taxes. There was also a payment for fire insurance, but since the allegations in respect thereto are admittedly insufficient or erroneous, no consideration will be given that item. The defendants, as owners, made redemption within the year, but, inasmuch as the plaintiff had failed to file or furnish the affidavit specified in section 8172, G. S. 1913, defendants paid nothing towards reimbursing plaintiff for the said amounts disbursed by him subsequent to the foreclosure sale. The above facts, except as to the payment for insurance, were appropriately alleged in plaintiff's complaint, and also that the failure to comply with the provisions of said section 8172 was due to plaintiff's mistake and inadvertence. He asks for personal judgment against defendants, that the amount be decreed a lien against the land, and for such other relief as to the court may seem just and equitable. The case is here on appeal from the order sustaining the defendants' demurrer to the complaint. The question presented is, has a mortgagee, who at the foreclosure sale bid in the property for the full amount of the debt then due, but, while the year of redemption ran, disbursed money in payment of taxes and in redemption from tax sales, no remedy if he has failed to file and furnish an affidavit in accordance with section 8172, G. S. 1913, when redemption is made by the mortgagor, as owner, without reimbursement for such tax payments, the mortgage containing a provision that the mortgagee may pay delinquent taxes and charge the amount to the mortgagor or the then owner, or at his option secure tax title to the property?

It is to be noted that in this case the foreclosure never became complete because the mortgagors redeemed. The sale thereby became of no effect. It was annulled. However, the power of sale became exhausted, at least as a means to enforce the collection of any part of the debt due or collectible at the time of the foreclosure. Loomis v. Clambey, 69 Minn. 469, 72 N. W. 707,65 Am. St. Rep. 576. And we may concede, without so deciding, that the payment of the taxes did not create an installment of the mortgage coming due subsequent to the foreclosure, so that there may be a reforeclosure therefor. It may also be conceded that, where a statutory remedy has been lost through omission to observe a prescribed requirement, courts have no power to restore the same unless the one seeking to reap an advantage therefrom in some manner induced the omission. The defendants are not charged with any conduct which caused or induced plaintiff to neglect to file the required affidavit.

The defendants confidently contend that plaintiff has no personal claim against them for the taxes paid and has no redress whatever, since he failed to obtain it under the provisions of said section 8172. The decisions cited by them do not foreclose the question. In Spencer v. Levering, 8 Minn. 461 (Gil. 410), where the statement is made that there is no personal liability against the mortgagor for failure to pay taxes, it does not appear that any agreement existed in regard thereto. Nor did Martin v. Lennon, 19 Minn. 67 (Gil. 67), or Nopson v. Horton, 20 Minn. 268 (Gil. 239), involve any agreement between the litigants in regard to the taxes. Cases from other jurisdictions...