41 Minn. 156 | Minn. | 1889
This action was commenced, under the statute, to' determine adverse claims to real estate, consisting of section 19, township 140, range 43. Both parties claim to have acquired title from a common source, — the Minnesota Land Company. Several judgments for the recovery of money.were rendered and docketed against the Minnesota Land Company, the owner of this land, in the-order and at the times here stated, viz.: The senior judgment in fajvor of one Hawley, December 20, 1883; the third judgment in order of seniority in favor of the defendant Holloway, January 11,1884;. the fifth in order in favor of the plaintiff, Abraham, May 2, 1884; and the two others in favor of other parties at later dates. October 27, 1884, the third or Holloway judgment was enforced by a sain under execution of this section 19, and also by a sale of other lands, being section 5 in. the same township, and section 33 in township' 141, range 43. Holloway purchased the lands at that sale. November 3,1884, the senior (Hawley) judgment was enforced by execution sale of this section 19, Hawley being the purchaser. The holders' of all the four judgments junior to that of Holloway, including this plaintiff, filed notices of intention-to redeem from Holloway’s execution sale. The holders of the four judgments next junior to that under which Hawley sold, including both this plaintiff and defendant, also filed notices of intention to redeem from that sale. No redemp
November 6, 1885, Holloway purchased from Hawley the sheriff’s certificate of sale under the senior (Hawley) judgment, and procured an assignment of that certifícatelo himself. On the same day, this being the last day allowed by statute within which this plaintiff, Abraham, might redeem from the sale under the Holloway judgment, the plaintiff attempted to make such redemption. He produced to the clerk of the district court the proper evidence of his right to redeem, as prescribed by statute, and tendered to the clerk the amount necessary to be paid, if he had a right at that time to redeem from that sale alone. Holloway, being present, claimed that the plaintiff must also pay the amount represented by the certificate of the Hawley execution sale, which certificate Holloway then held. He thus induced the clerk to refuse to receive the money tendered, or to give a certificate of redemption. The plaintiff did not always afterwards keep on hand the same money thus tendered, but has at all times been ready, able, and willing to pay the amount, and pleads his willingness to do so in this action. November 11, 1885, the defendant, Holloway, then holding by assignment the sheriff’s certificate of sale under the Hawley judgment, assumed to redeem therefrom, pursuing the form of preparing the proper proofs of his right to do so, and executing to himself a certificate of redemption. November 20, 1885, this being within the proper period of five days allowed by statute to the plaintiff to redeem from the Hawley sale, (five days after the expiration of the year allowed to the judgment debtor to redeem being given to each lien creditor successively in the order of seniority,) the plaintiff redeemed from that sale, presenting to the clerk of the court the proper proof of his right to do so, paying to him the amount bid at the sale, with interest, and receiving a certificate of such redemption.
If this last redemption by the plaintiff from the sale under the senior judgment was valid, he thereby acquired title to the land. Was he then a creditor having a lien upon the property, with the consequent right of redemption ? or had his lien already been extin
The plaintiff was not required, for the purpose of redeeming on the 6th of November from the Holloway sale, to pay the amount for which sale had been made under the Hawley judgment. Although Hawley’s was the senior judgment, the sale under it was not made until after that under the junior judgment, and hence the proper time, as prescribed by statute, for the plaintiff to redeem from the former had not yet arrived. Nor was that time affected by the defendant’s purchase of the sheriff’s certificate. The statute (Gen. St. 1878, c. 66, § 322) declares that the sheriff’s certificate of sale “shall, upon the expiration of the time for redemption, operate as a conveyance to the purchaser or his assigns of all the right, title, and interest of the person whose property is sold in and to the same, at the date of the lien upon which the same was sold, without any other conveyance whatever.” The interest which Holloway had in the property on the 6th of November, by virtue of his purchase of the certificate of sale under the Hawley judgment, was not a mere lien which the plaintiff must then pay in order to effectually redeem from the Holloway sale. The year had then expired within which alone the judgment debtor and its successor in interest could redeem. As to the judgment debtor, whose property had been sold, and whose right to redeem had expired, the certificate of sale had already become effectual as a conveyance of the legal title. The title was, however, held by the pur
The fact that the plaintiff did not deposit with the court the money tendered did not prejudice his case. The refusal of the tender may be treated, under the circumstances, as the act of the defendant, who was present, influencing the action of the clerk. The plaintiff might at once, upon the refusal of the tender, have maintained an action to enforce his right of redemption from the Holloway sale. His right, as a creditor having a lien, to redeem from the Hawley sale in proper time, remained unimpaired. That right he still had when, two weeks later, he made such redemption. He had not been put in default in respect to his obligation to Holloway. The latter, having in effect-refused the tender, had not changed his attitude by demanding, or by signifying his willingness to receive, the money.
We do not consider that the plaintiff, who, in this action, pleads his readiness to pay the amount necessary to redeem from the Holloway sale, forfeited his right to redeem from the Hawley sale by the fact that he had not kept the identical money tendered, ready to be paid on demand. Lamb v. Jeffrey, 41 Mich. 719, (3 N. W. Rep. 204;) Thomas v. Jones, 84 Ala. 302, (4 South. Rep. 270;) 2 Jones, Mortg. § 1095.
We come now to consider the effect of the defendant’s assumed redemption on November 11th, as respects the validity of the plaintiff’s redemption, November 20th, from the Hawley judgment sale. Whatever right the defendant had to make that redemption was by virtue of his being a creditor, with a lien upon the property. As to persons standing in that position, the right of redemption is given so that the creditor may have the property applied or made available for the satisfaction of his debt. He, in common with other lien creditors, is entitled to get his money out of the property, but by the means which the statute provides. For the purpose of having the property, to which several creditors are looking for the satisfaction of their re
The plaintiff had an absolute right to redeem from Holloway's sale. The statute prescribing the manner in which he might subsequently redeem from the later (Hawley) sale being framed upon the theory that one standing in his position has preserved his right to do so by having redeemed from the earlier (Holloway) sale, the defendant’s refusal to accept the tendered redemption should not be allowed to interfere with the exercise of the plaintiff’s further right-of redemption, in accordance with the provisions of the statute. If the plaintiff had not put himself in the equitable position of a redemptioner from the Holloway sale, he had no right to redeem from the Hawley sale at all. If he had placed himself in that position, he was entitled to redeem by complying with the requirements of the statute, — that is, by paying the amount bid at the Hawley sale, •with interest. As between these parties, and in the contemplation
We attach no importance to the plaintiff’s disregard of a communication from the clerk of the court, in December following the events to which we have referred, stating that he would then permit the plaintiff to redeem from the Holloway sale, and would issue a certificate of redemption upon payment of the sum before tendered. This communication was made officially, and not, so far as appears, as the authorized agent of the defendant. The officer had then no authority to issue a certificate of redemption, and the plaintiff was not required to pay the money to him without receiving a proper certificate.
The findings of fact made by the court, so far as material to the •case, are sustained by the evidence.
Order affirmed.
JSTote. A motion for reargument of this case was denied July 16, 1889.