45 Minn. 341 | Minn. | 1891
In each of these cases the question involved is the right of the plaintiffs to redeem from a mortgage sale; and as both grow out of the same general state of facts, and are more or less connected with and dependent upon each other, they can be better considered'together. So far as material to explain the legal questions involved, the facts are these: A Mrs. Nell, who owned a 40-acre tract of land, but the title of which was then in litigation, (Nell v. Dayton, 43 Minn. 242, 45 N. W. Rep. 229,) in March, 1886, executed two mortgages, — one on the west half and the other on the east half of the tract. Default having been made in the conditions of these mortgages, they were both foreclosed, and the premises sold on December 14,1888. The time for redemption would of course expire December 14, 1889. On August 1, 1889, Mrs. Nell executed to Seagrave Smith the trust-deed, Exhibit A, upon the entire tract. On December 12, 1889, Atwater & Hill commenced an action against Mrs. Nell to recover a debt which they alleged she owed them for services as attorneys, and on the same day caused an attachment to be issued in the action, and levied on the whole tract. On December 14, 1889, Mrs. Nell confessed judgment in favor of plaintiff Reed for a debt due him for services performed and money expended for her as attorney. This judgment was docketed on the same day. On December 14, 1889, Atwater & Hill and Reed each filed notices of intention to redeem from both foreclosure sales, — Atwater & Hill under their attachment lien, and Reed under his judgment lien. Smith had never done anything with the land under the trust-deed, Exhibit A, nor did either he
1. The first question that arises is whether, after the execution to Smith of Exhibit A, Mrs. Nell had remaining any interest or estate in the land upon which plaintiffs’ attachment and judgment were liens; for if not, then plaintiffs were not “creditors having a lien,” and had no right to redeem. Counsel have discussed at great length the questions whether Exhibit A was a trust or merely a power in trust, and, if the former, whether it was valid under the statute of uses and trusts. Under the view we have taken of the case, it becomes unnecessary to consider these questions. We shall assume that the instrument is all that defendants claim it to be, viz., a valid trust, — a conveyance of the land to Smith in trust' to pay certain charges upon it and to pay certain specified debts of the grantor. Defendants’ contention is that, as thus construed, it vested in Smith the whole estate in the land, so that'no title or interest remained in Mrs. Nell to which a lien could attach. That she had a residuary interest in the land cannot be questioned. The deed itself expressly provides that, “if there be more than sufficient to pay all of said claims in the manner as aforesaid, then the said trustee shall grant, convey, and set over to said Nell, her heirs, ” etc., “all of the rest and remainder of said property.” This is nothing more than the law would imply, for such a residuary interest necessarily arises in every case where property is assigned in trust to pay debts or to satisfy other specified objects. Had Mrs. Nell herself paid all the charges and debts specified in the deed of trust, the entire beneficial interest in the land would have been in her. Or if the trustee had accomplished all the purposes of the trust by executing mortgages, the land subject to the
But if her interest was merely an equitable one, the same result would follow. At common law the rule undoubtedly was that a mere equitable estate in land could not be sold on execution, for the familiar reason that courts of law did not recognize equitable estates, and could not deal with them. But a judgment creditor was not in such cases without remedy. He could file his bill in a court of chancery, which always held that, for its purposes, these equitable interests were just as much bound by the judgment as legal estates, and could be subjected to its satisfaction by equitable process; and in adjusting the conflicting rights of creditors it always followed, by analogy, the rules of the common law. It is true that the courts 'of chancery held that the lien or right to obtain satisfaction out of the specific property sought to be subjected to sale for that purpose dated from the filing of the bill. But this was also in strict analogy with the law, for at common law the judgment was not a-lien on real property, but it was the judgment creditor who first extended the land by elegit, or whose execution was first begun to be executed, who was entitled to priority; and a bill in equity to reach the property for the satisfaction of a judgment was considered as being in the nature of an equitable execution. But when the law was changed so as to make judgments liens from the date of their docketing there can be no reason why a court of equity, still following the analogy of the law, should not and would not hold that equitable interests in land were subject to the liens of judgments in the order of their priority
2. The next question which arises in the case of Atwater & Hill is whether an attaching creditor, who has not yet obtained judgment, is “a creditor having a lien, legal or equitable,” within the meaning of Gen. St. 1878, c. 66, § 323, and chapter 81, § 16.
A “creditor,” even in the strict technical sense of the term, is any one who has a right to require the fulfilment of an obligation or contract for the payment of money, — any one who has a debt or demand against another upon contract, express or implied, for the payment of moneys A “lien” is defined as a hold or claim which one person has upon the property of another as security for some debt or charge. And while an attachment on mesne process differs in some respects from either common-law, maritime, or equitable liens, yet it is a statutory lien, constituting a hold on the property, of the defendant; for the payment of such' judgment as the plaintiff may recover. Both in statutes and the decisions of courts it is everywhere denominated a “lien.” Hence one who has brought an action upon a contract for the payment of money only, as did Atwater & Hill, and attached the property of the defendant, is “a creditor having a lien,” within the ordinary and literal meaning of that expression. But defendants’ contention is that the liens to which the statute refers are those which they term absolute and perfect, fixed and definite, either by judicial determination or by the contract of the parties, as by judgment or mortgage; that the statute does not refer to or include a mere provisional and inchoate lien like that of an attachment on ■ mesne process. No such limitation is to be found in the language of the statute itself, and if it is to be imported into it by implication the reasons for it must be found elsewhere. Such a limitation of this apparently unambiguous language can only be justified on the grounds, either that it is implied from other provisions of statute on the same subject, or that a literal construction is inconsistent with the general purpose of the laws, or would be impracticable and lead to unreasonable or absurd results. The statute provides for two
Neither is there anything in the history of legislation on the subject in this state to indicate that the law-makers intended to use the language in any such limited sense. Under the Revised Statutes of 1851, (chapter 71, §§ 112-117,) in case of an execution sale, a “creditor’s” redemption was in express terms limited to judgment creditors and mortgagees; and in case of a mortgage sale (chapter 85, § 11) no “creditor’s” redemption was allowed at all, unless it was, under section 18, to mortgagees, which, however, seems to have been an “owner’s” redemption, which annulled the sale. This remained the state of the law until the enactment of Laws 1858, c. 61, (Pub. St. 1858, p. 646,) amending Rev. St. 1851, c. 71, § 115, which attempted, although in a very crude manner, to provide a comprehensive system of redemption from all salés “upon the execution, judgment, order, or decree of any court of this state, or upon the foreclosure, by advertisement or otherwise, of any mortgage, contract, or liability.” This act provided for an “owner’s” redemption within one year from the date of sale; also that “other creditors of the original judgment
It is a noticeable fact that, when the Revision of 3 866 was made, in every other state, (some 15 in number,) with one possible exception, in which a “creditor’s” redemption after sale was allowed, as well as in our own state, at least under the Revised Statutes of 1851,’ the right was limited in express terms to creditors having a lien by mortgage, judgment, or decree. It is highly probable that the commissioners were familiar with this fact, and had it in mind when introducing changes in our statutes. And if they intended to incorporate.or retain any such limitation in our laws, it would seem that they would have expressed it in plain and unambiguous language. The fact that they did not, but on the contrary coined and adopted a new expression of their own, strongly indicates that they intended
In' support of his contention that an attachment is not a lien, counsel quotes some remarks of Judge Story in Ex parte Foster, 2 Story, 131, to the effect that an attachment was not a lien within the meaning of section 2 of the bankrupt act of 1841; that it did not come up to the exact definition or meaning of a lien in the general sense of either a common-law, maritime, or equitable lien, — which is perhaps true. But, as against his construction of the act referred to, we may cite Kittredge v. Warren, 14 N. H. 509; Same v. Emerson, 15 N. H. 227; and Davenport v. Tilton, 10 Met. 320, — in which last case Judge Shaw very pertinently remarks that, in the construction of statutes, not much aid can be derived from considerations of mere expediency or general equity; that, however strongly they may influence the legislature in framing statutes, they cannot change their construction when the terms are not doubtful.
Neither do we find, in other provisions of statute relating to redemptions, anything that, by implication or otherwise, excludes attaching creditors from the class of redemptioners. The only one that has any bearing upon the question is the section providing what proof a proposed redemptioner must produce. The requirements of that section (section 14, c. 81) clearly imply that the lien must be of record. This is implied not only from the nature of the proof required, but also from the fact that it is essential for the purpose of fixing the order in which parties are to exercise the right of, redemption. But an attachment lien on real property is as much a matter of record as the lien of a mortgage or judgment. The requirement of an affidavit of the amount actually due would, by implication, limit the term “creditor” to its strict and proper sense, of one who has a claim for money due on contract, to the exclusion of those whose claims are for unliquidated damages, at least in actions «for torts, who could not well make such an affidavit. See Fisher v. Consequa, 2 Wash. C. C. 382. But we see no serious difficulty of this kind in the case of a demand due on a contract for the payment of money, where the contract itself, either expressly or by implication
Much stress is laid by counsel upon the supposed practical difficulties and evils which would arise from allowing redemptions on attachment liens, where the plaintiff may never obtain judgment, or where his attachment may be vacated. While there is some force in these suggestions, yet they go to the expediency of the statute, rather than its construction. The objections obtain with greater or less force to all redemptions out of court, without any judicial determination as to the rights of the parties. Even if the right of redemption be limited to mortgage and judgment creditors, it may prove, after the redemption has been made, that the mortgage or judgment was void or had been previously satisfied. But these difficulties are more imaginary than real. Our impression is that it has been the general understanding of the bar that attaching creditors were redemptioners under the statute, and yet we have never heard of many serious complications growing out of such a construction of the law. And the fact that the profession has generally put this construction upon the statute for so many years is an additional, although not a controlling, reason why the courts should adopt it. An illustration of how the statute has been generally construed is to be found in Kling v. Childs, 30 Minn. 366, (15 N. W. Rep. 673,) in which, while the point was not raised, both counsel and court seem to have assumed that an attaching creditor had a right to redeem.
3. In the Reed Case the defendants attack the validity of the plaintiff’s judgment on two grounds: (1) That the statement for judgment is on its face insufficient, for the reason that it does not state the facts out of which the confessed indebtedness arose; and (2) that the judgment was fraudulent, and not confessed for any actual indebtedness. The statement is that “the said indebtedness is due from me, the said Nell, to said Beed, on account of services and moneys paid out by Sea^rave Smith and said Beed, late copartners as Smith & Beed, paid and performed at my special instance and request, between the first day of October, 1887, and the first day of March, 1889, and that said amount has not been paid, but is now all justly due and owing; that the said Smith & Beed, for a valuable consideration to them paid
Plaintiff contends that the defendants cannot attack the judgment collaterally in this action on the second ground. Passing this question without deciding it, we are of opinion that the evidence does not sustain this objection to the judgment. It appears that, the title to this property being in litigation, Mrs. Nell employed Smith & Reed as her attorneys in the matter, and made a contract with them to give them for their services and expenditures in her behalf, in case of their success, one-third of the land upon termination of the suit; that in pursuance of this agreement they performed services and expended money, and prosecuted the suit to a successful termination, but in the mean time, by reason of the foreclosures already referred to, the land was about to be wholly lost to both her and them, she being unable to redeem. In this juncture of affairs, Mrs. Nell, recognizing her obligation to them for their successful services, for the pur
Orders affirmed.