102 N.W. 171 | N.D. | 1904
This is an action to recover the possession of a threshing engine, of which the plaintiff claims to be the owner, and which it is alleged the defendants wrongfully withhold. The defendants deny plaintiff’s -ownership and right .to possession, and allege .title in the defendant Russell & Co. The issues were submitted to a jury for trial, and the only evidence offered was certain stipulated facts. Plaintiff’s motion for a directed verdict in his
It appears from the pleadings and stipulation of facts that one Michael Giedd was formerly the owner of the property in dispute. The defendant Russell & Co., a corporation, held a first mortgage on the engine for a debt of $1,000 and interest, which mortgage contained the usual power of sale in case of default in the payment of the debt when due. The plaintiff held a second mortgage on the same property for a debt of $400 and interest. Both mortgages were given by Michael Giedd, and both were duly filed. On April 28, 1901, the defendant J. C. Smith, acting as agent for Russell & Co., took possession of the engine for the purpose of foreclosing Russell & Co.’s mortgage thereon under the power of sale. The sale was made May 11, 1901, at 2 o’clock p. m., and the engine was bid in for and struck off to Russell & Co., for th'e sum of $150. J. C. Smith conducted the sale as agent for the mortgagee, and had possession of the engine for that purpose. When the sale was made, he retained possession of the engine as agent for the purchaser. The engine is worth $800. At "2:38 o’clock p. m. on the day of sale, the plaintiff served upon Smith a notice of his intention to redeem from the sale, pursuant to section 5894, Rev. Codes 1899. On May 15th the plaintiff inquired of Smith for the amount of costs incurred in the foreclosure, but the latter refused to furnish any information on that subject. Thereupon, on the same day, plaintiff tendered to Smith, to effect redemption, the sum of $170; $20 being the estimated costs. The tender was refused. This action followed.
The sole basis for the right of redemption asserted by plaintiff is section 5894, Rev. Codes 1899, which reads as follows: “Any mortgagor of personal property, or his assignee, may redeem the same from a sale upon foreclosure of any mortgage within five days after such sale, exclusive of the day of sale, by paying or tendering to the owner of the mortgage at the time of sale, his agent or attorney, or the person making the sale, the amount for which said property was sold with the costs of sale and interest at the rate of seven per cent per annum from the date of sale. The mortgagor or his assignee desiring to redeem such property shall at the time of sale give written notice to the person making the sale of his desire to make such redemption; otherwise he shall be deemed
The solution of the problem upon which the controversy hinges depends upon the answers to be given to two questions: (1) Is the plaintiff, by virtue of his chattel mortgage, an “assignee” of the mortgagor, within the meaning of the act? (2) Has the plaintiff complied with all the conditions prescribed by the act to effect a redemption? It is manifest that plaintiff’s right is dependent upon an affirmative answer to both these questions. A negative answer to either question is fatal to plaintiff’s claim.
The act in question is an innovation, and, so far as we can ascertain, is peculiar to this state. It is a very crude piece of legislation, but the main object is very clear. It was plainly designed to prevent the sacrifice of mortgaged personal property for less than its value at a sale under the power. It is a matter of common knowledge that the power of sale in a chattel mortgage has been often made the instrument of much wrong and oppression. It enables the mortgagor to seize the property and sell it on a notice of six days, without the restraints and safeguards of judicial supervision. The advantage which the mortgagee has over other bidders has a tendency to prevent competition in bidding. Where the debt equals or exceeds the value of the property, the mortgagee will, as a rule, outbid other bidders, so as to get the property, or its full value, for himself. The result is that the mortgagee seldom has any competition at the sale, and is at liberty to buy the property for any sum he sees fit, however insignificant the price may be. The facts of this case furnish a good example of the evils which the law was designed to remedy. The first mortgage exceeded the value of the property. The circumstances of the debtor were such that he either could not or would not redeem. The s’econd mortgagee was effectually barred from redeeming before sale, because, in order to do so, he would have to pay the full amount due on the first mortgage, which was at least $200 more than the property was worth. The
The appellant, however, asserts that the plaintiff has no cause of action because he did not serve the notice of intention to redeem
There is no proof in the record that the plaintiff deposited the money tendered for redemption in a' bank of good repute, payable to defendants. The appellant assigns this defect of proof as a ground for reversal, and we think the point is well taken. The statute imposes on the redemptioner the obligation to pay the amount required t'o redeem as a condition precedent to the acquirement of any right to the property sold. It was incumbent on the 'plaintiff, therefore, to show that the obligation which the statute imposed on him had been extinguished. Section 3814, Rev. Codes 1899, provides: “An obligation for the payment of money is extinguished by a due offer of payment, if the amount is immediately deposited in the name of the creditor with some bank of deposit within this state of good repute, and notice thereof is given to the creditor.” Section 3818 provides: “An obligation for the delivery of money * * * is not discharged by an offer of performance, nor any of its incidents affected, unless the thing offered, if money, is deposited as provided in section 3814. * * *” The respondent argues that, inasmuch as the stipulated facts show that a tender was made, it must be presumed that the offer of the money was followed by a proper deposit in the absence of a denial of such deposit by the defendant. That argument is based on the erroneous assumption that the act of tender, under our statutes, includes the deposit of the money. The Civil Code has not changed the definition of the term “tender.” That term still means what it always meant — an offer of performance. The Code has substituted the requirement of deposit of the thing tendered, at the risk of •the creditor, in place of the common-law requirement that a tender must be kept good by a readiness to pay and payment into court. The Code has also' made this further innovation on the common law with respect to the effect of a tender; that a mere tender of the debt is no longer sufficient, as at common law, tO' extinguish a mortgage or pledge of property, but, to have that effect, the tender must be kept good by a deposit of the thing tendered, subject to the order of the creditor. Section 3814, quoted above, provides that, in the absence of a deposit, an obligation is not discharged, “nor any of its incidents affected,” by a mere offer of performance. In harmony with this, rule, we find that section 4693, relating to the redemption of liens, provides that,'if the amount secured requires
The judgment is reversed, and a new trial ordered.