105 Minn. 348 | Minn. | 1908
On July 1, 1905, George R. Robinson, the owner of a farm of one tndred sixty acres of land situated in Hennepin county, and his ife, Florence Robinson, mortgaged the same to Helen Conhaim to cure the payment of the sum of $3,400. George R. Robinson died ovember 17, 1905. Conhaim foreclosed the mortgage, and on iptember 18, 1906, the property was sold to her in one parcel for ,734:75. November 23, 1906, Conhaim assigned her sheriff's cer
No redemption was made by any one as owner from the foreclosurl sale under the Conhaim mortgage. September 18, 1907, the last dal of the year allowed by the statute to owners to redeem, HalberS Parsons, and Bartleson each filed with the register of deeds due anl proper notice of his intention to redeem from the foreclosure sale s| a creditor having a lien upon the premises by virtue of his respecti-vl mortgage. On the same day Bowler filed a like notice of intentiol to redeem under the mechanic’s lien judgment. September 23, i90'| Bowler, the senior lien creditor, redeemed and succeeded to all cl I-Iodgdon’s rights in the land. On September 28, 1907, within tl'l second five days, Halbert redeemed by paying $4,151 to the sheri I of Hennepin county, and received from him a certificate of redem™ tion, which was on September 30, 1907, duly filed and recorded. Ol October 7, 1907, Bartleson redeemed by paying $7,788.63 to the sherij of Plennepin county, and received from him a certificate of redemu tion, which was duly filed and recorded. On September 24, Parsorj paid Bowler the sum of $4,125, and Bowler executed and delivere to Parsons a certificate of redemption, which was filed and recordej on the same day.
Bartleson, claiming that Parsons had not redeemed, because his payment to Bowler was out of order, his lien being junior to that of Halbert, and the subsequent tender to Halbert insufficient in amount, commenced an action in forcible entry and unlawful detain-er against Munson and Parsons in the municipal court of the city of Minneapolis. When this action came on for hearing, Munson and Parsons appeared and entered pleas of not guilty. After some evidence had been taken it appeared that title to real estate was involved, and the case was thereupon certified to the district court as required by the statute. In that court the defendants moved to dismiss the action on the ground that the court had no jurisdiction. The motion was denied, and, a'witness being called by the plaintiff, the defendant objected to any evidence being received on the ground that the complaint did not state facts sufficient to constitute a cause of action. The complaint was then amended, and, after a similar objection to the reception of evidence under the amended complaint had been made
The appellants contend that the action should have been dismissed' in the municipal court, because an action of forcible entry and unlawful detainer will lie only when the relation of landlord and tenant exists, or has existed, and is the foundation of the action. Ordinarily the parties to such an action stand in that relation, but the statute expressly authorizes the proceeding “when any person holds over lands or tenements after a sale thereof on an execution or judgment, or on-foreclosure of a mortgage by advertisement, and expiration of the-time for redemption.” Section 4038, R. L,. 1905. The Conhaim-mortgage was foreclosed by advertisement. The time for redemption had expired, and Munson, who had been in possession during the year,, was holding over. Munson is certainly within the express provision of the statute. Parsons does not seem to have made any effort to-have the action in the municipal court dismissed on the ground that he was not in possession of the_ premises when the action was commenced. It appears that on the day after the action was commenced, Parsons, claiming that he had redeemed, took the possession of the premises from Munson and made some arrangement with Munson by which the latter was to remain on the land as the tenant of Parsons. The court found that on the trial in the municipal court Parsons admitted “the allegations- of said complaint respecting the possession.” He was in possession at the time of the trial in the district court, and offered “evidence for the purpose of establishing title to said real estate and the right to hold and possess the same in himself.” The action was properly transferred to the district court, and was there tried anew. It was then, to all intents and purposes, an action in ejectment. Ferguson v. Kumler, 25 Minn. 183. Parsons was then in possession, and asserting the right to possession on the ground that he was the legal owner of the land. His rights were litigated in that action with his consent, and it is now immaterial whether he was in possession of the land when the proceedings in the municipal court were instituted.
There is no merit in the claim that the amended complaint did not state facts sufficient to constitute a cause of action in ejectment. The point is that the complaint alleged that George R. Robinson was the
The objection to any evidence under the complaint was in general erms. The bill of exceptions shows that, when the plaintiff offered n evidence the license authorizing the sale of the land to Maud Robin-on and the deed of the executrix completing the transfer, the de-endants objected to them, “on the ground that they were incompetent, irrelevant, and immaterial.” Such an objection does not raise he question of the admissibility of the evidence under the pleadings.
Smith v. Kingman & Co., 70 Minn. 453, 73 N. W. 353. The present ase is a good illustration of the reasonableness of the rule, as it is erfectly clear that, had the plaintiff’s attention been called to the de-ect, it could have been cured by an., amendment. Nelson v. Chicago,. M & St. P. Ry. Co., 35 Minn. 170, 28 N. W. 215; Vaughan v. McCarthy, 63 Minn. 221, 65 N. W. 249; Johnson v. Okerstrom, 70 Minn., 03, 73 N. W. 147; Merchants Nat. Bank of Grand Forks v. Barlow, 9 Minn. 234, 83 N. W. 364. The manner in which Maud Robinson btained the title is found in detail by the trial court, and, as the entire-vidence is not before us, it must be presumed that there was evience sufficient to sustain the finding.
When a complaint merely alleges title in the plaintiff, the defend-nt may, under a general denial, prove any fact the existence of which ecessarily negatives the allegation that the title is in the plaintiff; ut, when the plaintiff sets out in detail the specific facts on which is title rests, defendant under a general denial can only disprove the icts thus specifically pleaded. Dickson v. City of St. Paul, supra, page 165, 117 N. W. 436. The plea of not guilty, which is all that is iquired in an action of forcible entry and unlawful detainer in or-;r to put in issue the allegations of the complaint (Berryhill v. Healey, 89 Minn. 444, 95 N. W. 314), stood as the equivalent of a
The right of lien creditors to redeem is created by statute. It is £ strict legal right, to be exercised, if at all, in accordance with the terms of the statute, unless waived or extended by the party whose interests are to be affected. Atwater v. Manchester Sav. Bank, 45 Minn. 341, 48 N. W. 187, 12 L. R. A. 741; Hoover v. Johnson, 41 Minn. 434, 50 N. W. 475. No redemption was made within the yeai by any one as owner, and under such circumstances the statute pro vides that “the senior creditor having a lien, legal or equitable, upoi 'the mortgaged premises, or some part thereof, subsequent to the mort gage, may redeem within five days after the expiration of said twelvi months; and each subsequent creditor having a lien, in succession, ac cording to priority of liens, within five days after the time allowed tli prior lienholder, respectively, may redeem by paying the amoun aforesaid and all liens prior to his own held by the person from whon redemption is made.” Section 4481, R. L. 1905. The evident pur pose of this statutory plan for redemption by creditors through a kin of auction sale is to make the land bring its utmost value while pre serving the rights of each creditor according to the seniority of hi lien.- '-Pamperin v. Scanlan, 28 Minn. 345, 9 N. W. 868; Sprague v. Martin, 29 Minn. 226, 13 N. W. 34; Todd v. Johnson, 56 Minn. 60, 57 N. W. 320. The statutory provisions must therefore be strictl followed, unless waived by interested parties.
In this case the creditors, in the order of their liens as shown bl the record, were Bowler, Halbert, Parsons, and Bartleson. Bowlcl redeemed within the first five days, Halbert redeemed from Bowlcl within the second five days, and it was then Parsons’ turn to redeeil from Halbert. But Parsons claimed that his lien was ahead of or cell •ordinate with that of Halbert, and attempted to redeem from Bowl« .ahead of Halbert. We are clear that in this he was in error, and th.B his payment of the money to Bowler did not effect a redemptioB Halbert’s lien was prior in record and date to that of Parsons, arfl “there is no provision in the statute to determine the rights of rfl
During the period allowed to the creditor next in order after Hal-bert, Parsons attempted to redeem from Halbert by tendering the amount which Halbert had paid to redeem from Bowler, and in addition thereto, not what Halbert’s affidavit stated was due on his mortgage, but what Parsons claimed or was willing to admit was due. To make a redemption Parsons was required to pay what Halbert had paid to redeem from Bowler, “and all liens prior to his own held by :he person from whom redemption is made.” Section 4481, R. D. L905. The general plan provided for redemption by creditors is nconsistent with the idea that a junior creditor may determine for limself the amount and validity of the prior liens, and tender only vhat he conceives to be properly due thereon. The affidavit which he statute requires must state the amount of the lien, in order that he junior lienholder may know the amount necessary to be paid. Villiams v. Lash, 8 Minn. 441 (496) ; Tinkcom v. Lewis, 21 Minn. 32, 141. The “auction” must proceed rapidly as provided for by the tatute, and the junior lienholder must pay what the records show to e due, and resort to some other proceeding to recover any damages ccasioned by a fraudulent lien or a lien for an excessive amount, ’arker v. St. Martin, 53 Minn. 1, 55 N. W. 113.
The other assignments of error are without merit, and the order of íe trial court is affirmed.