Tanner v. Lawler, 8518

• Decision Date: 05 January 1957
• Docket Number: No. 8518,8518
• Citation: 6 Utah 2d 84,305 P.2d 882
• Parties: d 84 Earl D. TANNER, Respondent, v. W. C. LAWLER and Laura M. Lawler, his wife, Defendants and Appellants (Water H. Reichert, Counterclaimant as to Earl D. Tanner, and Plaintiff against George Beckstead, Sheriff, v. George Beckstead, as Sheriff of Salt Lake County, Utah, Defendant in Intervention, and Respondent.)
• Court: Utah Supreme Court

Page 882

305 P.2d 882

6 Utah 2d 84

Earl D. TANNER, Respondent, v. W. C. LAWLER and Laura M. Lawler, his wife, Defendants and Appellants (Water H. Reichert, Counterclaimant as to Earl D. Tanner, and Plaintiff against George Beckstead, Sheriff, v. George Beckstead, as Sheriff of Salt Lake County, Utah,

Defendant in Intervention, and Respondent.)

No. 8518.

Supreme Court of Utah.

Jan. 5, 1957.

Elias Hansen, Salt Lake City, for appellant.

Earl D. Tanner, Frank E. Moss, W. T. Thurman and D. Frank Wilkins, County Attorney, Salt Lake City, for respondent.

WADE, Justice.

Plaintiff, Earl D. Tanner, respondent here, brought this action to obtain possession and damages for unlawful detainer of a tract of land with a home thereon. Tanner claims ownership of this property by a sheriff's deed under a mortgage foreclosure and sheriff's sale from which he redeemed the property as assignee of a judgment lien in favor of Paul Clowes. The defendant and intervener Walter Reichert, one of the appellants here, claims the property as the assignee of the judgment creditor in the foreclosure suit who bid the property in for the full amount of its judgment and assigned the Sheriff's Sale Certificate to Reichert for the amount necessary to redeem the property from such sheriff's sale. On the advice of his counsel and with actual knowledge that Tanner was interested in redeeming this property from the sheriff's sale, Reichert intentionally took an assignment of the Sheriff's Sale Certificate instead of a Certificate of Redemption. The defendants and appellants, W. C. Lawler and wife, have occupied the premises since April, 1952, with three minor children, as purchasers and mortgagors and claim a homestead exemption of $3,650 as against the respondent's right to redeem which they have quitclaimed to Reichert.

The foregoing and following facts are either shown without dispute in the evidence or by stipulation:

In August of 1950, James C. Magana and wife delivered to the Pacific National Life Assurance Company a mortgage on such property which eventually secured the payment of two promissory notes for a total of $9,379. On April 9, 1952, the Maganas conveyed the mortgaged property to Reichert and he and his wife on April 14, 1952, conveyed such property to the Lawlers. Each of the grantees in such conveyances assumed and agreed to pay the balance of the indebtedness secured by such mortgage. The payments due on such mortgage indebtedness being delinquent, on December 15, 1954, Pacific National Life Assurance Company commenced action to foreclose the mortgage against the Maganas, Reicherts and Lawlers as mortgage debtors and various claimants of subsequent liens against the mortgaged property. In that action five subsequent liens were claimed against the mortgaged property for debts owing by the Lawlers totaling $7,573.47. One was a judgment lien of Paul Clowes for $1,555.48 dated May 28, 1954, and another a judgment lien of Reichert against the Lawlers for $4,017.20, dated May 18, 1955. Although all of these liens were pleaded in the mortgage foreclosure case the only judgment entered in that case was the one foreclosing the Pacific National Life Assurance Company's mortgage and that company bid the property in on the sheriff's sale for the full amount of the judgment of $8,563.48 on July 5, 1955.

Thereafter, on December 27, 1955, Lawler made his Homestead Declaration, the next day Reichert paid the Pacific National Life Assurance Company $8,821.91 for an assignment of the Sheriff's Certificate of Sale and on December 29, 1955, the Lawlers quitclaimed their interest in the mortgaged property to Reichert. On December 29, 1955, the foregoing instruments were recorded and a copy of such instruments was served upon the sheriff together with a notice of the assignment of the Sheriff's Certificate of Sale to Reichert. Subsequently on the same day Tanner served notice on the sheriff of his intention to redeem the property from the sheriff's sale as assignee of the Clowes' lien together with an affidavit showing the amount then owing on the judgment lien, an assignment to him and a cashier's check for $9,078.81 payable to the sheriff for Reichert as assignee of the Sheriff's Certificate of Sale and received from the sheriff a Redemption Certificate and after the expiration of the redemption period on January 6, 1956, he received a Sheriff's Deed to the property. Since then Reichert has retained possession of the premises through the Lawlers as his tenants although the time allowed after due notice to the Lawlers to surrender such premises has long since ecpired. The fair rental value of such premises is $100 per month. The trial court awarded to plaintiff possession of the premises and treble damages against the appellants who have furnished a stay bond on this appeal.

Appellants contend that the payment to the Assurance Company, and assignment of the Certificate of Sale to Reichert, and the quitclaim deed from the Lawlers to him were in effect a redemption by Reichert as 'the judgment debtor' which terminated the effect of the sale and any right to redeem by the holders of liens which were subsequent to the mortgage and restored Reichert to his former estate and the former estate of the Lawlers giving him the benefit of their claim of homestead exemption in this property.

Rule 69(f), Utah Rules of Civil Procedure deals with the right to redeem from a sheriff's sale of real property and is divided into five subdivisions containing the following provisions:

'(1) * * * Property sold subject to redemption, * * * may be redeemed by * * * (1) The judgment debtor; (2) a creditor having a lien by judgment or mortgage on the property sold, * * * subsequent to that on which the property was sold.'

'(2) * * * At the time of redemption the person seeking the same may make payment of the amount required to the person from whom the property is being redeemed, or for him to the officer who made the sale, or his successor in office. At the same time the redemptioner must produce to the officer or person from whom he seeks to redeem, and serve with his notice to the officer: (1) a certified copy of the docket of the judgment under which he claims the right to redeem, or, if he redeems upon a mortgage or other lien, a memorandum of the record thereof certified by the recorder; (2) an assignment, properly acknowledged or proved, where the same is necessary to establish his claim; (3) an affidavit by himself or his agent showing the amount then actually due on the lien.'

'(3) * * * The property may be redeemed from the purchaser within six months after the sale on paying the amount of his purchase with 6 per cent thereon in addition, * * *.'

'(4) * * * If the property is redeemed by a creditor, any other creditor having a right of redemption may, within 60 days after the last redemption and within six months after the sale, redeem the property from such last redemptioner in the same manner as provided in the preceding subdivision, upon paying the sum of such last redemption, with three per cent thereon in addition * * *.'

'(5) * * * If no redemption is made within six months after the sale, the purchaser or his assignee is entitled to a conveyance; or if so redeemed, whenever sixty days have elapsed and no other redemption by a creditor has been made and notice thereof has been given, the last redemptioner or his assignee, is entitled to a sheriff's deed at the expiration of six months after the sale. If the judgment debtor redeems, he must make the same payments as are required to effect a redemption by a creditor. If the debtor redeems, the effect of the sale is terminated and he is restored to his estate. Upon a redemption by the debtor, the person to whom the payment is made must execute and deliver to him a certificate of redemption, duly acknowledged * * *.'

Section 28-1-2, U.C.A.1953 provides:

'When a homestead is conveyed by the owner thereof such conveyance shall not subject the premises to any lien or encumbrance to which it would not be subject in the hands of the owner; and the proceeds of the sale thereof, to the amount of the exemption existing at the time of sale, shall be exempt from execution or other process for one year after the receipt thereof by the person entitled to the exemption.'

Since Reichert, deliberately and on the advice of counsel with knowledge that Tanner was interested in redeeming this property, chose to take an assignment from the Assurance Company instead of a Certificate of Redemption, he is now bound by that choice. So it is necessary for us to determine what was the effect of that assignment on the further rights to redeem this property from that sheriff's sale.

An assignment merely sets over or transfers the interest of one party in certain property to another. ¹ Such an assignment does not have the effect of canceling any...