Way v. Hill

• Decision Date: 12 March 1919
• Docket Number: No. 4460.,4460.
• Parties: WAY v. HILL et al.
• Court: South Dakota Supreme Court

41 S.D. 437

171 N.W. 206

WAY

v.HILL et al.

No. 4460.

Supreme Court of South Dakota.

March 12, 1919.

Appeal from Circuit Court, Codington County; W. N. Skinner, Judge.

Action by Minnie G. Way against Rodney Hill and others. From an order overruling a general demurrer to the complaint, defendants appeal. Order affirmed.Case & Case, of Watertown, for appellants.

Sherin & Sherin, of Watertown, for respondent.

SMITH, P. J.

Appeal from an order overruling demurrer to plaintiff's complaint on the ground that the complaint does not state facts sufficient to constitute a cause of action, or to entitle plaintiff to the relief demanded. The action is to redeem certain real property from a sale on execution. The complaint alleges that on November 24, 1911, M. E. Hill, one of the defendants, recovered judgment in the circuit court of Walworth county against plaintiff, Minnie G. Way, for the sum of $3,819.58; that an execution was issued on said judgment on December 11, 1911, and levied upon certain property of plaintiff which was sold for a sum, which, after payment of costs of sale, left a net balance of $542.75 to be applied and credited on said judgment. The complaint also alleged cash payments on said judgment, stating dates and amounts of payments, consisting of numerous items. The complaint also alleges that on February 26, 1916, certain property of plaintiff was duly levied upon, and on March 30, 1916, was sold under another execution issued on said judgment, for the sum of $2,640; that on March 28, 1917, plaintiff paid to the sheriff the sum of $223.30 as interest on said judgment and taxes due on said land, whereby the date of redemption was extended to March 30, 1918. The complaint further alleges that the total sum due on said judgment, including the amount due on said sheriff's certificate of sale, amounts to $5,673.61, “leaving a balance of $117.71 due on said debt, which plaintiff has tendered and hereby tenders to defendants.”

Plaintiff's counsel in their argument and brief denominate this action an action in equity for an accounting. Plainly it is, and can only be considered as an action to redeem from an execution sale. The right to redeem depends upon the application of the numerous payments alleged, which require computation and application. In no other sense is this an action for an accounting. The complaint alleges specifically, with dates, the items of cash payments to Case as attorney for Hill, and that they were to be applied upon the judgment. There is no allegation that other payments have been made which have not been credited thereon. The plaintiff's statement of payments stands admitted by the demurrer, and the question discussed by counsel is whether the payments so alleged and admitted, together with the amount tendered, entitle the plaintiff to a decree awarding a redemption from the second execution sale.

[1][2] As we view the allegations of the complaint, it is unnecessary to consider whether a tender in court without a proper offer to redeem, and deposit in a reputable bank, would be sufficient to work a redemption. Even an equity court has no power to extend the period of redemption, or to prescribe a mode of exercising the statutory right of redemption in a manner other than that provided in the statute. But this rule does not deprive courts of their equitable jurisdiction and power to control the legal rights of both creditor and redemptioner under settled rules of equity jurisprudence applicable in cases of excusable mistake in attempts in good faith to exercise legal rights, or where acts of the parties give rise to an estoppel against the exercise or denial of such rights. Loomis v. Nat. Supply Co., 99 Kan. 279, 161 Pac. 627. A court, in the exercise of its equity powers, may enforce the right when shown to exist, and in a...