43 Minn. 172 | Minn. | 1890
Lead Opinion
At the times of executing the several mortgages hereinafter mentioned, one Peter Borden was the owner of the real estate in this action involved. July 19, 1882, he executed a mortgage on the property, with a power of sale, to the trustees of Beloit College, which mortgage was duly recorded July 20,1882. February 25, 1887, this mortgage was duly foreclosed under the power, and the trustees became the purchasers at the sale. The certificate of sale was recorded the same day. February 18, 1888, the trustees assigned the certificate to plaintiff, and the assignment was recorded February 29, 1888, May 23, 1885, Borden executed a mortgage on
The appellant’s propositions in regard to the redemption maybe reduced-to these two: First. If the defendant’s right of redemption was that of a creditor having a lien, he could not make redemption without paying the amount of the second mortgage then held by plaintiff, who also then owned the right of the-purchaser on .the foreclosure of the first mortgage. Second. But, as defendant’s debt was extinguished by the foreclosure of the mortgage held by him, at which the property was bid in for the whole amount of the debt, he was not a “creditor having a lien,” and could not redeem as such; and, if regarded as an “assign” of the mortgagor for the purpose of redemption, he could redeem only within the year, and redemption by him would merely annul the sale from which he redeemed.
The first of these propositions is disposed of by the decision in Pamperin v. Scanlan, 28 Minn. 345, (9 N. W. Rep. 868,) followed in Parke v. Hush, 29 Minn. 434, (13 N. W. Rep. 668,) in which it was
The other proposition presents a question not free from doubt, to wit, to which class of persons entitled to redeem, “assigns” or “creditors having liens,” does the, purchaser at the foreclosure of a junior mortgage belong? In Cuilerier v. Brunelle, 37 Minn. 71, (33 N. W. Rep. 123,) it was held that within the meaning of those sections of the statute giving the right to redeem, and prescribing how and when redemption may be made, the mortgagee in a junior mortgage, not foreclosed, is not an “assign,” but is a creditor having a lien. The status, in respect to this, of the purchaser under a foreclosed junior mortgage, before the title under the foreclosure has passed to him, has never been decided. The matter was before the court, but not decided, in Tinkcom v. Lewis, 21 Minn. 132. In the opinion in that case, Mr. Justice Young recognizes the difficulty of considering the purchaser as a creditor, but says: “On the other hand, there are equal, if not greater, difficulties in the way of holding that during the year following the sale such purchaser is an ‘ assign ’ of the mortgagor, within the meaning of section 13.”
When we have in view the general purpose of the statute giving and regulating the right of redemption, — to wit, to enable all who have interests or claims which may be cut off by a foreclosure or execution sale to save their interests or claims, so far as they may without impairing the rights of those in whose behalf such sale was made, or who purchased at such sale, it must be held that the foreclosure of a subsequent lien does not take from it the right of redemption. In the case of a junior mortgage the purchaser at the foreclosure of it is in some sense, until the mortgagor’s title passes to him by expiration of the time for redemption, the successor of the mortgagee. It is true his right and interest is different in some respects from that of the mortgagee. But is the difference such as
That the purchaser has a lien for the purchase price does not remove the difficulty the court found in Tinkcom v. Lewis in holding him a creditor having a lien. In that opinion it is said “for the mortgage debt was satisfied by the sale, and the purchaser at a mortgage sale does not become a creditor of the mortgagor in the usual sense of the term.” We think however on reflection that the term “creditor” as used in the statute ought not to be construed as having the limited sense of a personal creditor. There m.ay be a creditor so far as concerns the land alone, without the personal relation of debtor and creditor in the ordinary sense existing. Thus a mortgage might be given without any personal liability, any liability beyond the land, any right in the creditor of recourse except to the land; or a mortgage might secure the debt of a third person. In such case the mortgagee would not be a creditor of the mortgagor in the usual sense of
Judgment affirmed.
Concurrence Opinion
Mitchell, J.
While I adhere to the views expressed by me in Parke v. Hush, supra, I concur in the result upon the ground that of Beloit College to plaintiff was not on record. when defendant made redemption, the assignment from the trustees