Summerville v. Sorrenson

• Decision Date: 21 June 1912
• Citation: Summerville v. Sorrenson, 23 N.D. 460, 136 N.W. 938 (N.D. 1912)
• Parties: SUMMERVILLE et al. v. SORRENSON, Sheriff, et al.
• Court: North Dakota Supreme Court

23 N.D. 460

136 N.W. 938

SUMMERVILLE et al.

v.SORRENSON, Sheriff, et al.

Supreme Court of North Dakota.

Feb. 14, 1912.

Rehearing Granted April 1, 1912.

On Rehearing June 21, 1912.

Syllabus by the Court.

Relators claimed to be junior mortgagees, and as such entitled to redeem from a certain sheriff's foreclosure sale upon mortgage foreclosure, and attempted to comply with section 7146, R. C. 1905, but furnished a certificate signed by the deputy register of deeds in his own name, instead of one signed in the name of the register of deeds by said deputy. Held, that such certificate was and is a nullity, and the sheriff was justified in refusing to issue the certificate of redemption. The section above mentioned being enacted for the protection of the sheriff and subsequent redemptioners must be complied with.

Appeal from District Court, Ward County; Goss, Judge.

Mandamus proceedings by L. M. Summerville and others against S. A. Sorrenson, Sheriff, and others. From a judgment quashing the writ, the relators appeal. Affirmed.

Fisk and Bruce, JJ., dissenting.Palda, Aaker & Greene and Halvor L. Halvorson, for appellants. Bosard & Twiford and Murphy & Wooledge, for respondents.

BURKE, J.

The Kenmare National Bank was the holder of a sheriff's certificate issued to it upon a tract of land sold under mortgage foreclosure by advertisement. Upon the last day but one of the period of redemption, plaintiffs attempted to redeem from said certificate in accordance with section 7146, R. C. 1905, claiming that they were junior mortgagees. They served upon the sheriff, at different times during said day, the following papers: First, a notice of redemption stating that they desired to redeem “by virtue of a junior mortgage upon said premises dated July 25, 1906, and recorded September 1, 1906, at 8:30 a. m. in Book 65 of Mortgages, page 42, said mortgage being made to the Minneapolis Thresher Company and by them assigned to the undersigned by an instrument in writing, datedMay 11, 1909, and filed for record in the office of the register of deeds, Ward county, N. D., on the 17th day of July, 1909, and recorded in Book 113 of Mortgages, page ------, and we, the undersigned, tender herewith the sum of $1,517.85,” etc.; second, a certified copy of the assignment of the mortgage; third, an affidavit of the plaintiffs to the effect that they were legally entitled to redeem from the sheriff's certificate by virtue of the mortgage held by them, and that there was due upon said mortgage the sum of $2,500; fourth, a purported note by the deputy register of deeds of Ward county, in words as follows: “I, S. S. Reishus, deputy register of deeds in and for Ward county, N. D., do hereby certify that I have examined the records in regard to the S. 1/2 N. W. 1/4 and lots 3 and 4, Sec. 5, Twp. 163, Rge. 388, and find that the statements regarding the mortgage recorded in book 65 of Mortgages, page 42, as above set forth are correct and true. [Signed] S. S. Reishus, Deputy Register of Deeds.” At the same time they paid to the sheriff the money above mentioned. The sheriff, upon the instigation of the bank, refused to execute and deliver to them a certificate of redemption and an alternate writ of mandamus issued from the district court to the sheriff. The return of the sheriff set forth the facts as stated above, and asked that the Kenmare bank be allowed to intervene and contest the regularity of the redemption. This was allowed, and the defendant bank insisted that the attempted redemption was void for failure to comply with said section 7146. The question for us to decide is whether the redemption was valid or void. Section 7146 reads: “A redemptioner must produce to the officer or person from whom he seeks to redeem and serve with his notice to the sheriff: (1) A copy of the docket of the judgment under which he claims the right to redeem, certified by the clerk of the district court of the county where the judgment is docketed, or if he redeems upon a mortgage or other lien, a note of the record thereof certified by the register of deeds. (2) A copy of the assignment necessary to establish his claim, verified by the affidavit of himself or of a subscribing witness thereto. (3) An affidavit by himself or his agent showing the amount then actually due upon the lien.”

Respondents contend that the proceedings taken by the plaintiffs do not amount to a legal redemption for the following reasons: First, that the relators did not serve with their notice of redemption a note of the record of the mortgage under which they claim to redeem, certified by the register of deeds; second, that the copy of the assignment of the mortgage served upon the sheriff was not verified by the relators or the subscribing witnesses as required by law. Under the first head, they point out that the certificate served upon the sheriff was signed by the deputy register of deeds in his own name and right without signing the name of his principal. In the case of Wilson v. Russell, 4 Dak. 376, 31 N. W. 649, this court, speaking of a deputy sheriff, says: “A deputy sheriff has no power nor authority other than that which pertains to and which he exercises as acting for the sheriff by whom he is appointed, to whom he gives his bond and to whom also he is responsible for his acts as such deputy, the sheriff, himself, in turn, being responsible for the acts of his deputy as such.” As the statute authorizing the appointment of a deputy register of deeds and a deputy sheriff are the same, we think the above-entitled case in point. This is also the holding of Ditch v. Edwards, 1 Scam. (Ill.) 127, 26 Am. Dec. 414, and of the authorities collected in the note in the American Decisions, supra, wherein it is stated: “* * * The question of the deputy's power to sign his own name without specifying his principal's name often arises. And the cases with few exceptions are uniform that the return, to be valid, should be in the name of the sheriff”-citing many cases. In line with these authorities, we must hold that the purported note of record issued by the deputy register of deeds was a nullity, having no effect whatever, and leaving the redemption in the same condition as though none had been served whatever upon the sheriff. As to the legal effect of this omission we quote from 27 Cyc. page 1832 (F) the following general rule: “Where the redemption from a mortgage is made on common-law or equitable grounds, the form in which the transaction is cast is not material, * * * but in the case of a redemption after sale on foreclosure the provisions of the statute granting the right and regulating the manner of its execution must be strictly pursued.” In Wilcoxson v. Miller, 49 Cal. 193, it was held: “That a person claiming the right to redeem from a sheriff's sale as a judgment creditor must produce for the sheriff a copy of the docket of the judgment, and an attempted redemption is ineffectual without such production, and the sheriff's deed is void. The power of the sheriff in relation to redemption is purely statutory, and his acts are nugatory unless the provisions of the statute are pursued.”

In the case of Tinkcom v. Lewis, 21 Minn. 132, the attempting redemptioner failed to file the affidavit as to the amount due upon his lien, as required by their statutes. The court held this omission fatal to the redemption, and used this language: “The sections of chapter 81 [Gen. St. 1878] which confer the right to redemption, * * * being of a remedial character, * * * should receive a liberal construction. * * * But by no allowable liberality of construction can we hold that the computation made by the defendants and the sheriff of L. & S.'s claim on the 80 acres is equivalent to the affidavit required by the third subdivision of section 14. The right of redemption from sales upon foreclosure by advertisement is wholly the creature of the statute; and, while we would construe the statute liberally in favor of the mortgagor and redeeming creditors, we cannot dispense with or repeal its positive terms. Merely formal deviations or irregularities may be overlooked; but there must be a substantial compliance with the express requirements of the statute, in order to a valid redemption. The language of section 14 is clear and imperative. The person desiring to redeem shall produce to the sheriff * * * an affidavit of himself or his agent, showing the amount actually due on his lien. The object of this requirement is to provide the evidence whereby a junior creditor may ascertain the amount necessary to be paid to the senior creditor upon a redemption from him.” In the same case it is held that the holder of the certificate “is not affected by the sheriff's waiver; the sheriff not being in any sense his agent”-citing Horton v. Maffitt, 14 Minn. 289 (Gil. 216), 100 Am. Dec. 222;Davis v. Seymour, 16 Minn. 210 (Gil. 184). The redemption was held invalid. We have purposely quoted at length from this Minnesota case, because it is one of the cases relied upon strongly by the appellant. In the same case, and as an additional reason for the invalidity of the redemption, it is insisted that the junior mortgagee did not produce to the sheriff a copy of his assignment as required by the Code, but in its stead produced the original instrument together with the indorsement of the register of deeds that it had been duly recorded. The court said that the statute did not require the sheriff to refuse a higher class of proof than named therein. This seems to be their idea of informal deviations from the Code. To the same effect are the cases of Wilson v. Hayes, 40 Minn. 531, 42 N. W. 467, ...