Willis v. Jelineck

• Decision Date: 20 July 1880
• Citation: 27 Minn. 18
• Parties: H. B. WILLIS <I>vs.</I> JACOB JELINECK.
• Court: Minnesota Supreme Court

Page 18

27 Minn. 18

H. B. WILLISvs.

JACOB JELINECK.

Supreme Court of Minnesota.

July 20, 1880.

Action of ejectment, tried in the district court for Ramsey county before Brill, J., a jury being waived. Judgment was

ordered for the defendant, a new trial was denied, and plaintiff appealed.

Palmer & Bell, for appellant.

John B. & W. H. Sanborn, for respondent.

CORNELL, J.

Action to recover possession of certain real estate, both parties claiming title under a sale upon a foreclosure by advertisement of a mortgage given in April, 1867, by one Mary A. Haus and her husband. The sale was made by the sheriff, October 17, 1876, to one Richmond, who became the purchaser, and received the usual certificate of sale and purchase. It is admitted by the pleadings that no redemption was had within the twelve months next after the sale, by any of the parties who were entitled to redeem under the provisions of Gen. St. 1866, c. 81, § 13. Plaintiff's claim is that no redemption whatever has ever been made under either section 13 or 16 of said chapter, though the time allowed therefor has expired, whereby the rights acquired by the purchaser at said sale, and evidenced by the certificate, have ripened into an absolute title, which is now held by plaintiff. On the part of the defence, the claim is that the property was duly redeemed from such sale, within the five days allowed by law, under said section 16, by one Fink, the defendant's lessor, as a senior creditor, who had a lien upon an undivided estate or interest in the premises, by virtue of a judgment rendered and docketed April 1, 1875, against one Vitt, who had acquired a title to such undivided interest, derived from the mortgagor subsequent to the mortgage. Said judgment was rendered in the district court of Ramsey county, in favor of Elias S. Higgins and Nathaniel D. Higgins, partners as E. S. Higgins & Co., plaintiffs in the action, and was assigned, as defendant alleges, by them to one Sanborn, and by the latter to said Fink, who claims to have been the owner thereof at the time of his alleged redemption.

The cause was tried by the court without a jury, and the issues presented for trial, it will be seen, involved the right of Fink to redeem under the statute, (Gen. St. c. 81, § 16,) and also the fact of his alleged redemption and its validity. In respect to the first point, the contention is that such right, if it ever existed, had been cut off by the repealing act of March 3, 1877, (Laws 1877, c. 121,) which, it is claimed, had the effect of abrogating entirely the provisions of section 16 aforesaid, and all Fink's rights thereunder. The answer to this position is that, prior to the passage of this repealing enactment, the lien of the judgment which Fink had acquired and held had already attached to the property; and if it was sufficient to entitle him to redeem as a senior judgment creditor, it secured to him the right, in case no redemption was had under section 13 by any of the parties therein designated, within the time therein prescribed, to redeem upon complying with the conditions of sections 14 and 16 of said chapter of the General Statutes, and thereby to acquire, from the holder of the certificate of purchase, all the rights which he had obtained from the purchase, and then held under such certificate of purchase, by paying therefor the amount of the purchase-money, and interest. This was a vested, valuable property right, of which Fink could not be divested or deprived without his consent, except by due process of law, and hence it was not and could not be affected by the repealing act of March 3, 1877.

The suggestion that, the lien of the judgment upon which Fink's redemption was founded being only upon an undivided interest in the property, it therefore gave no right of redemption, is met by the statute, which enacts in express terms that "if no such redemption is made," (i. e., none under section 13,) "the senior creditor having a lien, legal or equitable, on the real estate, or some part thereof, subsequent to the mortgage, may redeem," etc. An undivided interest in real estate is "some part" of it, within the meaning of this statute, liberally construed, as it must be under the decisions of this court. Williams v. Lash, 8 Minn. 441 (496;) Tinkcom v. Lewis, 21 Minn. 132.

Upon the trial, defendant was permitted, against plaintiff's objection, to prove by parol that the mortgagor, Mary A. Haus, died intestate in 1871, leaving her surviving her husband and five children, her sole heirs at law; that her estate had never been administered on, and that she left no debts outstanding against her estate; and, further, that four of her said children, together with her said husband, joined in executing and delivering to said Vitt, the judgment debtor named in the judgment under which defendant claimed the right to redeem, on the 6th day of May, 1872, a good and sufficient deed of conveyance to pass to him, and his heirs and assigns, all the...