Drew v. Smith

| Minn. | Jul 15, 1862

By the Court

Emmett, C. J.

The Appellant founds his objections to the judgment rendered against him, upon four propositions or points, which may be stated as follows :

1st, That a bond conditioned for the conveyance of real estate, upon the payment of the purchase money at a future day, is in the nature of, and should be treated as a mortgage.

2d. That the judgment or decree asked for and obtained in this case, is in the nature of a strict foreclosure of a mortgage instrument, a remedy which he insists is obsolete under our practice.

3d. Admitting that a strict foreclosure may be had, still it will never be granted, except where the interest of the mortgagee would be materially and injuriously affected by a sale of the property.

4th. That the Court should not have made the repayment, by the Defendant, of taxes paid by the Plaintiffs, a condition upon which he should yet be allowed to comply with the conditions of the bond.

Since this judgment was rendered in the Court below, the first of the points above named has been directly passed upon by this Court in the case of Dahl et al. vs. Pross, 6 Min. R., 89, á case involving the same principles substantially as the present, and wherein it was held and decided that a bond, for the conveyance of real estate, differed widely from a mortgage, and could not be regarded or treated as such an instrument. The same doctrine was recognized in the case of Yoss vs. De Freudenrich, 6 Minn. R., 95. These decisions effectually dispose of the Appellant’s first point, and go far towards settling the others also; for they all seem based upon the proposition that such a bond as that under consideration in this case, is in effect a mortgage simply. We will however briefly allude to each in its order.

The second of these points is based upon a doubt which the Appellant seems to entertain as to whether, notwithstanding what was said in the opinion of this Court in Stone vs. Bassett, 4 Minn., 298, a majority of its members hold that a mortgage may be strictly foreclosed in chancery.

We can only say as to this point, that whatever of doubts may have existed as to the decision referred to, they are, or ought to be, entirely dissipated by the report of the case of Judd vs. Heyward, 4 Minn., 483, decided at the next succeeding term; in which each member of the Court, in a separate opinion, distinctly recognizes the, right of the courts, in the exercise of their chancery powers, to decree the strict foreclosure of a mortgage in a proper case.

As to the Appellant’s third point, we think that the time which shall in a given case be allowed the mortgagor after , default, within which to redeem from the forfeiture of the mortgage, and by analogy to the obligee in a bond for the conveyance of real estate, within which to comply with the terms thereof, is wholly within the discretion of the Court, unless controlled by the statute, and that an appellate Court should never interfere, except an abuse of that discretion is clearly manifest.

But it may be urged there should be a uniform rule on this subject. A mortgagee should not be permitted to secure a perfect title to the lands mortgaged, nor should the mortgagor be deprived of his interest therein, in a shorter time by way of strict foreclosure, than by means of a sale ordered by the Court, or made in pursuance of a power contained in the mortgage. And in regard to the rights and remedies of parties to a bond for a conveyance, (which, though in strictness a mere agreement to convey and not a mortgage, yet in effect answers the same end, and is used indifferently by parties instead of that instrument to effect the same object,) it may be claimed that the interest of the obligee should not be divested in a shorter time than if a mortgage had been given ; and the more especially where, as in this case, a considerable portion of the purchase money has been paid.

These objections are formidable when addressed to the legislature, and are entitled to consideration by the courts whenever they fix a time before which the equity of redemption shall not be foreclosed, or the bond cancelled; but so long as the law mailing power does not attempt to control the discretion which the courts have heretofore exercised in this particular, it is not the province of this Court to interfere except in extreme cases. They are obviated however to a considerable extent, by the power which the courts have of ordering a sale in any case; and in my opinion, the objections might be wholly removed, if the courts would in analogy to the statutes concerning redemption from mortgage and judicial sales, give to the mortgagor before foreclosing the mortgage absolutely, or to the obligee of a bond lite that under consideration in this case, before decreeing a cancellation of the bond, the same time given by law for redemption from sales. This, it seems to me, would effectually prevent a party from securing any permanent advantage by a mere choice of remedies, without working hardship or injustice to either, for whatever time the law gives in the latter instance must be construed to be reasonable, and could not therefore be deemed unreasonable in the former.

With regard to the Appellant’s fourth and last objectio;., we think that when courts, in the exercise of their chancery powers, give time to delinquent mortgagors, or to the obligees in title bonds, before foreclosing tlie equity of redemption, or cancelling tbe bonds, they may couple therewith such conditions as equity may require, and that it is not inequitable to require the repayment of such taxes as the other party may have had to pay in order to protect the estate.

The pleadings in this case show that the taxes accruing after the execution of the bond were to be paid by the Defendant ; and if he neglected so to do, we cannot see why the Plaintifls would not have the right to pay them themselves, and thus protect their interests from forfeiture to the State, especially after breach of the condition of the bond by the obligee, when he no longer had a legal right to, and might never insist on completing the purchase. Whether these taxes were levied, or paid before the • default, or afterwards, does not appear; nor is any question made as to the amount paid or the regularity of the assessment, etc. The objection goes to the payment of any amount, under any circumstances, and is altogether too broad. If there are any presumptions, they are in favor of the finding and the judgment.

We do not wish however to be understood as holding that the Plaintiffs were lien holders under the statute, and as such might pay the taxes, and make the same a lien on the land; or that any person other than a mortgagee or lien holder would have the power thus to secure a lien. We simply decide that the Court, when it accords to a party thus in default the privilege of avoiding a forfeiture by yet complying with the conditions broken, within a specified time, — a privilege which he has no right to demand at law, — may attach to such privilege the condition that he shall do equity to the other party, by reimbursing such sums as may have been paid to protect the property from forfeiture for the non-payment of taxes. There can be nothing inequitable in this. On the contrary it would be unjust not to require it. The giving of time at all, to a party thus in default, was at first a matter of pure discretion with the chancellor. So long therefore as the i íortgagor or obligee in a title bond could not under such circumstances demand the privilege as a right, it is clear that he could not be injured by any conditions which might be attached to it. And so too alter the courts began to regard such defaulting mortgagor or obligee as baying a right in equity to a reasonable extension of time before foreclosure, there still was nothing to prevent them from attaching thereto such conditions as might be equitable between the parties.

The judgment of the District Court must be affirmed.