Tinkcom v. Lewis

• Decision Date: 17 November 1874
• Citation: Tinkcom v. Lewis, 21 Minn. 132 (Minn. 1874)
• Court: Minnesota Supreme Court
• Parties: JAMES R. TINKCOM <I>vs.</I> WILLIAM F. LEWIS & others.

Page 132

21 Minn. 132

JAMES R. TINKCOM vs. WILLIAM F. LEWIS & others.

Supreme Court of Minnesota.

November 17, 1874.

Plaintiff held two mortgages, each embracing a tract of 80 acres in section 13, and another tract in section 12, township 106, range 28, in Blue Earth county. Defendants Lewis & Shaubut held a mortgage, of later date than either of plaintiff's mortgages, on the 80 acre tract in section 13. Plaintiff foreclosed his two mortgages by advertisement, the sales taking place March 15, 1871. At each sale, the mortgaged tracts were sold separately to the plaintiff, at a separate price for each, the aggregate price of both tracts at each sale being the amount due on the mortgage under which they were sold, with costs, etc., and the price paid for each tract at each sale was stated in the certificates of sale received by plaintiff, which were duly recorded. On March 25, 1871, defendants Lewis & Shaubut foreclosed their mortgage by sale pursuant to advertisement, and purchased the premises mortgaged to them, viz: the 80 acres in section 13, at a price equal to the amount due on their mortgage, with costs, etc., receiving the usual certificate of sale, which was duly recorded.

No attempt at redemption from any of the sales was made by the mortgagor, whose time for redemption from the sale to plaintiff expired March 15, 1872. On March 12, 1872, defendants Lewis & Shaubut filed with the register of deeds of the county, a written notice of their intention to redeem all the lands sold to plaintiff on the foreclosure of his mortgages. On March 18, 1872, Lewis & Shaubut, (being still owners of the certificate of sale issued to them, as above mentioned, and no one having redeemed from the sale to them,) at the office of the register of deeds, produced to the defendant Diamond, sheriff of the county, and the same sheriff who made the foreclosure sales, a certified copy of their notice of intention to redeem, and also produced to him the original certificate of sale to them of the 80 acres in section 13, with the certificate of record thereon, and notified him that the mortgage to them, upon the foreclosure of which their certificate was issued as before mentioned, might be examined there. The sheriff and the defendant Lewis thereupon computed the amount due plaintiff on his two certificates of sale, and also the amount of Lewis & Shaubut's claim on the 80 acres under their certificate, for the purpose of ascertaining the amount due them, and to satisfy the sheriff of their right to redeem. They did not produce to the sheriff any affidavit of the amount due on their lien. The computation having been made, Lewis & Shaubut paid to the sheriff the full amount necessary to redeem all the lands from both sales to plaintiff, and received from him a certificate of redemption of all the lands from both sales, which certificate was duly recorded. On March 20, the sheriff handed to plaintiff the amount so paid on such redemption; but plaintiff refused to accept it, and afterwards brought this action in the district court for Blue Earth county, to cancel the certificate of redemption and the record thereof, and for other relief. Hanscome, J., before whom the case was tried without a jury, found the foregoing facts and, as conclusions of law, 1. That Lewis & Shaubut had a right to redeem all the premises included in their redemption certificate; 2. That they did so redeem; 3. That defendants were entitled to judgment. From the judgment entered upon these findings the plaintiff appeals. The statutory provisions involved in the case are printed in the margin.¹

Wilkinson & Pitcher, for appellant.

D. A. Dickinson and Brown & Wiswell, for respondents.

YOUNG, J.

Each of the plaintiff's mortgages embraced not only the eighty acres in section 13, included in the mortgage to the defendants, but also the sixty-five acres in section 12; but this circumstance gave the defendants no right to redeem the latter tract from the foreclosure sales, each tract having been separately sold at a separate price. If the defendants, as junior mortgagees of the eighty acres in section 13, had attempted, before foreclosure, to redeem this tract from the plaintiff's mortgages, and in order to effect such redemption had been obliged to pay off, and had paid off the entire mortgage debts, in such case the defendants would be permitted in equity to succeed to the plaintiff's rights, and to stand in his place, not only in respect of the eighty acres subject to their own junior mortgage, but in respect of all the lands subject to the mortgages which they had paid off. The payment and redemption would have operated, not as a satisfaction and discharge of the plaintiff's mortgages, but as a purchase by the defendants, and an equitable assignment to them, of those mortgages and the mortgage debts, which, for their benefit, would be treated as still subsisting liens. The same result would follow from a similar redemption by the defendants after a foreclosure of the plaintiff's mortgages by suit to which they were not parties, their rights being in no way affected by the decree or by the sale under it. As to them, the mortgages would be considered as not foreclosed, but as still subsisting liens, and the purchaser at the sale as a mere assignee of the mortgages. And as such a redemption would be a redemption from the mortgages, and not from the sales, the redeeming creditors would be obliged to pay the full amount of the mortgage debts, without regard to the amount for which the land sold. In such case, the defendants' right to redeem the sixty-five acres in section 12, would rest solely on the ground that the two tracts were united in subjection to the lien of a single mortgage, for a single and indivisible debt, which the defendants must pay as an entirety, as a condition of the exercise of their right to redeem the eighty acres in section 13 on which they had a lien. They would be allowed to redeem land on which they had contracted for no lien, simply because they could not in any other way redeem the land mortgaged to themselves, and protect the lien secured to them by their contract with the mortgagor.

But the statute, (Gen. Stat. ch 81,) provides for the sale of the mortgaged lands, not for a sale or assignment of the mortgage; for a redemption of the property sold, not of the property mortgaged; and the redemption is made from the purchaser as purchaser, not as assignee of the mortgage; and by the payment of the amount of his bid at the sale, with interest, whether this sum be more or less than the amount due on the mortgage. The purchaser at such a sale does not become an assignee of the mortgage, which is satisfied, in whole or in part as the case may be, by the sale. In this case, the lands sold for the full amount due on the plaintiff's mortgages, with costs, etc., and the sales therefore operated as a payment in full of the debts due the plaintiff, and a satisfaction and discharge of his mortgages. Berthold v. Holman, 12 Minn. 335. The plaintiff having availed himself of the privilege of purchasing at the sale, allowed him by § 10, ch. 81, thenceforth stood in the same position as any other purchaser. The right acquired by him as such purchaser was subject to be defeated by a redemption by the owner within twelve months from the sale, in which case the sale would be annulled, and the estate sold would have revested in the mortgagor, free alike from any lien of the satisfied mortgage and from the plaintiff's rights as purchaser. (§ 15.) No such redemption having been made, each certificate of sale operated, at the expiration of twelve months from the sale, as a conveyance to the plaintiff, as purchaser, of all the estate of the mortgagor in the premises sold, at the date of the mortgage. (§ 12.) That is, the plaintiff then became the owner in fee of both tracts, subject to the right of redemption of any other person, as provided by law. (§§ 15, 16.)

This right of redemption, given by § 16 to creditors, being a right to redeem the real estate sold from the sale, — not to redeem the real estate mortgaged from the mortgage, — the creditor seeking to redeem must have a lien on the real estate, sold or some part thereof. The two tracts were sold separately, at a separate price for each, and this fact is stated in the certificates of sale. By § 15, a redemption by a lien-holding creditor "operates as an assignment to him of the rights acquired under such sale." The creditor's right of redemption is the right to buy the purchaser's interest, at the price paid by him, with seven per cent. interest from the date of the sale. Had these tracts been sold to different purchasers, it is difficult to see in what manner the purchaser of the eighty acre tract would be prejudiced, or what right of his would be infringed, if the defendants, as creditors holding a lien upon this tract, had offered to redeem it at the statutory price, without offering to redeem the sixty-five acres in section 12, which had been sold to a different purchaser, and on which they had no lien. Nor could the purchaser of the eighty acres in any way prevent the defendants from making such redemption....