Davis v. Seymour

16 Minn. 210 | Minn. | 1870

By the Court

McMillan, J.

The statement in the case “ that at the time of the payment of the money by Carli to Seymour, Carli was entitled to redeem, and Ellen Downie to receive the redemption, ” must be taken in connection with the further statement, that she refused to receive it on the ground that Carli had not the right to redeem, and must be construed to mean, that, at the time of the payment, Carli’s right to redeem the premises had not been adjudicated, and was subject to be disputed and was disputed by Ellen Downie from whom the property was to be redeemed, and that the tender was refused by her on that ground, in good faith.

The defendant Seymour, in receiving the money paid by Carli for the redemption of the land, acted in his official capacity, as the officer of the law with whom a party redeeming may deposit the money, instead of paying it to the party entitled to it, but he was not the agent of Ellen Downie in doing so. Horton and wife vs. Maffit and wife, 14 Minn. 296.

If the sheriff in receiving the redemption money is to be regarded as the agent of the person for whom it is paid, the latter would in all cases be concluded from disputing the regularity or validity of a redemption, for having received the money by his agent, the sheriff, he would be estopped to deny the regularity of the redemption. Such a proposition is sufficiently refuted by its statement.

The tender of the money by the sheriff to Ellen Downie immediately after he received it was nothing more than his official duty, and denying as she did in good faith the right of Carli to redeem, it was her privilege to obtain an adjudication of the question by the courts, before receiving the money. In order todo this, her refusal of the money tendered was both proper and necessary. Her refusal to receive the tender did not affect the fund, nor change the relation of the sheriff as the official depositary of the money; so long as the payment was not withdrawn by Carli the redemptioner, and Ellen Downie refused to accept it, contesting his right to redeem, the money remained in the hands of the sheriff as its official custodian until the rights of the parties were finally determined and the money paid by the sheriff to the party entitled to it; the money therefore at the time of the levy had not passed from the custody of the law, and it is unnecessary to cite authorities to sustain the position that money or property in the custody of the law is not subject to levy.

We need not consider the other question, as to whether there was a levy made.

Judgment affirmed.