Tanner v. Lawler, 8518
| Decision Date | 23 May 1957 |
| Docket Number | No. 8518,8518 |
| Citation | 311 P.2d 791,6 Utah 2d 268 |
| Parties | d 268 Earl D. TANNER, Respondent, v. W. C. LAWLER and Laura M. Lawler, his wife, Defendants and Appellants, Walter H. REICHERT, Counterclaimant as to Earl D. Tanner, and Plaintiff against George Beckestead, Sheriff, v. George BECKSTEAD, as Sheriff of Salt Lake County, Utah, Defendant in Intervention, and Respondent. |
| Court | Utah Supreme Court |
Elias Hansen, Salt Lake City, for appellants.
Earl D. Tanner, Frank E. Moss, County Atty., W. T. Thurman, D. F. Wilkins, Asst. County Attys., Salt Lake City, for respondents.
Appellants' petition for rehearing raises some contentions which require further consideration.
1. They contend that we erred in holding 'that because Reichert purchased the certificate of sale he may not claim to be a redemptioner for and on behalf of the Lawlers.' They urge that although Reichert intentionally took an assignment of the sheriff's certificate of sale, instead of a certificate of redemption, still he being a judgment debtor in the foreclosure action, and having succeeded to the interest of the Lawlers in the mortgaged property, he was entitled to the benefit of the provisions of the Utah Rules of Civil Procedure, Rule 69(f)(5) that '[I]f the debtor redeems, the effect of the sale is terminated and he is restored to his estate.' Whereupon he is entitled to a certificate of redemption, which must be filed and recorded in the county recorder's office.
We adhere to our holding that the provisions of Rule 69(f)(5) dealing with the right of a judgment debtor who redeems his property from a sheriff's sale in a foreclosure action gives him different rights than if he takes an assignment of the sheriff's sale certificate. Under the above provisions of Rule 69(f)(5) had Reichert redeemed from the sheriff's sale as a judgment debtor and as successor of the interest of the Lawlers, the effect of the foreclosure sale would have terminated. In that case he would have been the owner of the property free from the mortgage which had been foreclosed and paid off by the sale and redemption, but the subsequent liens and other interests in the property, including the Clowes judgment lien, would have been restored the same as if no foreclosure sale had occurred, and the rights of subsequent redemptioners would have been terminated. On the other hand, since he chose to take an assignment of the sheriff's certificate of sale he thereby succeeded to the interest which the Assurance Company obtained by the foreclosure proceedings and by purchasing the property at the sheriff's sale. Had there been no subsequent redemption from his purchase at such sale, he would have been entitled to the sheriff's deed, which would have carried with it title to the property sold as free from encumbrances as the title would have been had the deed been issued to the Assurance Company as purchaser at the mortgage foreclosure sheriff's sale. His title would have been free from the Lawlers' homestead exemption claim, and all subsequent liens and mortgages against this property.
However, such assignment of the Assurance Company's certificate of sale was subject to the same claims and rights of others that it would have been in the hands of the Assurance Company. Particularly, it was subject to the right to redemption from such sale by the holders of subsequent judgment liens and Tanner as the assignee of the Clowes judgment lien was entitled to, and did, redeem the property from the mortgage foreclosure sheriff's sale. We will discuss the effect of that redemption under the next proposition.
2. Appellants contend that we erred in failing to construe Rule 69(f) of the Utah Rules of Civil Procedure to mean 'that a redemptioner who redeems property sold under a decree of foreclosure acquires only the interest of the person against whom such redemptioner has a judgment lien or mortgage.'
In their argument they point out that the Clowes judgment under which Tanner redeemed was only against Mr. Lawler and not against his wife, who was a joint owner of the mortgaged property. They argue that Tanner by his redemption merely took the property free from the mortgage debt which had been paid, but subject to Mrs. Lawler's joint ownership and to the Lawlers' homestead exemption in the property as against the Clowes judgment lien.
This argument would have much force if our Rules of Procedure provided, as in the case where a judgment debtor redeems, that the effect of the sale is thereby terminated and the person who redeemed is restored to his former estate, and is entitled to receive and file and record a certificate of redemption. But the rules contain no such provision. On the contrary, the rules provide for subsequent redemptions 'within 60 days after the last redemption and within six months after the sale.' 1 And in case of a redemption 'whenever sixty days have elapsed and no other redemption by a creditor has been made * * * the last redemptioner * * * is entitled to a sheriff's deed at the expiration of six months after the sale.' 2 The right to redeem from a mortgage foreclosure sale is purely statutory or based on procedural rule. Without such provisions, equity provided no right to redeem from a mortgage after a foreclosure sale had been made and confirmed, so our problem is one of statutory or rule construction, pure and simple, and is not covered by common law or equity rule. 3
Rule 69(f) makes no distinction between the right to redeem from a mortgage foreclosure sale by a judgment lien holder, whose lien covers only a part ownership in the land sold, and such lien holder where the lien covers the entire ownership of such property. Nor does it make any distinction between the title which these different kinds of lien holders obtain from the sheriff's deed, which the sheriff is required to issue after the redemption period has expired. So we have no authority under these provisions to make...
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