153 N.W. 395 | N.D. | 1915
Lead Opinion
(after stating the facts as above). The questions' to be determined in this case are: (1) Whether the quitclaim deed from E. W. Mattern and-wife-was in fact a mortgage; (2) if so, whether one who accepts a quitclaim deed can, for the purpose of redemption, claim it to be a mortgage; (3) whether the defendant had slept on his rights and was precluded from redeeming; (4) whether the failure of the defendant to file a notice of redemption, as provided in § 7142, Rev. Codes 1905, § 7756, Compiled Laws of 1913, extended the time in which' the plaintiff, or a second redemptioner, was entitled to redeem beyond the year of the time of redemption, if the plaintiff occupied the position of a redemptioner instead of an owner; (5) whether, under the proof, the Advance Thresher Company mortgage, purchased by the defendant subsequent to his redemption, had not been paid prior to such purchase by the original mortgagor, Mat-tern; (6) whether, by failing to file the notice of the assignment of the Advance Thresher Company mortgage to him, the defendant did not forfeit his right to demand the payment thereof at the time of the attempted' redemption by the plaintiff.
We must start with the promise that the North Dakota redemption statute “is remedial in its nature, and is intended, not only for the benefit of creditors holding liens subsequent to a lien in process of foreclosure, but more particularly for the purpose of making the property of the debtor pay as many of his debts as it can be made to pay, and to prevent its sacrifice, and should be liberally construed.” North Dakota Horse & Cattle Co. v. Serumgard, 17 N. D. 466, 29 L.R.A.(N.S.) 508, 138 Am. St. Rep. 717, 117 N. W. 453; 27 Cyc. 1800. Also that mortgaged real estate which is transferred to a subsequent purchaser with recorded notice of encumbrances becomes “in equity a primary fund for the payment of the mortgage debt.” Colonial &
The rule has now become an established rule of property in this state, and should not be abrogated by this court. It cannot be claimed to be other than just and equitable. The decisions of this court are both retroactive and prospective in their nature, and any alteration or change of the rule on our part might greatly endanger titles and legitimate property interests. Such being the case, and, as the plaintiff, Fox, was in fact a lien holder and entitled to the rights of such, this right included the statutory right of redemption from a prior redemptioner within sixty days, even though this period extended beyond a year from the time of the original foreclosure. We say this because it is undisputed that the ’ quitclaim deed in this case was in fact a mortgage, and the law seems to be well established that the rights of the holder of a deed which is in fact a mortgage are as far as the right to redeem is concerned, the same as if the instrument under which he claims were in express terms a mortgage, and that no prior adjudication of such fact is necessary. Scheibel v. Anderson, 77 Minn. 54, 77 Am. St. Rep. 664, 79 N. W. 594.
We must remember that the statute in regard to redemptions is not only for the benefit of the lien holder, but also for the benefit of the mortgagor, and that the policy of the law' and of the statute seems to be to give every encouragement to subsequent lien holders to redeem, and this as much for the benefit of the debtor as of the lien holder. Under the provisions of §§ 7755 and 7756 of the Compiled Laws of 1913, §§ 7141 and 7142, Rev. Codes 1905, the plaintiff was not required to redeem from the defendant, Nelson, within the year, since Nelson had not within said yearly period perfected his redemption by filing the duplicate notice thereof with the register of deeds, as required by § 7756 of the Compiled Laws of 1913.
“The notice to be filed by a redemptioner,” says the supreme court of South Dakota in construing a similar statute, “is for the benefit of the person filing it, as its filing is the beginning of a brief period of limitation of which he may take advantage as against other redemptioners. But under this statute the redemption and the filing of the notice of redemption are distinct acts. As against the person from
We can, indeed, see no foundation for the contention that whether the notice is filed or not, the redemption of a subsequent lien holder must be made within the year from the original foreclosure. The statute expressly provides that “if the property is so redeemed, by a redemptioner another redemptioner may, even after the expiration of one year from the day of sale, redeem from such last redemptioner; provided, the redemption is made within sixty days after such last redemption.” [Comp. Laws 1913, § YY55.] We have before us merely a redemptioner who is allowed by the grace of the statute to redeem. He is given a brief statute of limitations as against still other redemptioners, and such persons are given a still further period in which to redeem, and this,.not for the benefit of the redemptioners merely, but of the original debtor, and in furtherance of the theory that the real estate shall be looked upbn as a trust fund for the payment of the mortgagor’s debts. Nor is there any merit in the contention that the plaintiff is estopped from redeeming because, prior to the subsequent redemption by the defendant, he may have said that he had no intention of redeeming. Even if he made such a statement, the original mortgagor and debtor should not be deprived in equity of his accruing advantage from having the notice filed and subsequent lien holders given the power and the opportunity to resort to and extend the uses of the mortgaged property, and to thus relieve him of his personal indebtedness and liability. So, too, the defendant in this case is not in any way prejudiced in so far as his claim or security is concerned*
We, too, are well satisfied that whether the Thresher Company mortgage had been paid or not (and from our perusal of the evidence we think it was), it was not incumbent upon the plaintiff to pay the same at the time of his attempted redemption. At that time, and as far as we know up to the present time, no duplicate notice of redemption was or has been filed by the defendant, Nelson. Section 7142, Eev. Codes 1905, being § 7756, Compiled Laws of 1913, provides that “written notice of redemption must be given to the sheriff and a duplicate filed with the register of deeds of the county, and if any taxes or assessments are paid by the redemptioner or if he has or acquires any lien other than that upon which the redemption is made, notice thereof must in like manner be given to the sheriff and filed with the register of deeds; and if such notice is not filed, the property may he redeemed' without paying such tax, assessment or lien.” It will be noticed that in the latter part of the section we have just quoted there is an express provision that where no such notice is filed the payment of no other than the original debt sought to be redeemed from is necessary. It is also to be noticed that the provision relating to notice of the acquirement of subsequent liens is separate and distinct from the notice of redemption which must be filed in order to effect a regular statutory redemption. We may also add that after a careful examination of the
The judgment of the District Court is reversed, and the cause is remanded with directions to enter judgment allowing the plaintiff to redeem said premises within sixty days from the filing of the remittitur in the District Court, upon the paying to the clerk of the 'District Court for the defendant the sum of $2,300, less taxable costs herein on trial and on appeal, which amount was tendered to the defendant by the said plaintiff on the 10th day of December, 1912, and the judgment and decree herein will further satisfy and cancel of record the mortgage and notes of the said Mattern to the said Advance Thresher Company.
Dissenting Opinion
(dissenting). I cannot agree to the conclusion reached hy my associates in this case. In my opinion the majority opinion does violence to well-settled legal principles, utterly ignores prior decisions of this court, which have become rules of property in this state, and places a misconstruction upon the governing statutes so radical in character as to amount to a judicial amendment. The de
This action was tried to the court without a jury. The defendant prevailed in the court below, and plaintiff appeals. The case comes here for trial de novo. This fact should be kept carefully in mind. Plaintiff has asked this court to retry this case, and it is self-evident that, in order to recover, he must plead and prove such facts as will warrant a judgment in his favor; and that if the evidence in the record fails to establish such facts, that then he cannot recover. The material facts are not in dispute. On November 8, 1906, Edward W. Mattern and his wife gave a mortgage on the land involved herein, to one E. A. Thayer, to secure the sum of $1,200. This mortgage was afterwards assigned to one Mary M. Brackett. This mortgage was foreclosed by advertisement, and on July 29, 1911, the premises covered thereby purchased by Mary M. Brackett at such foreclosure sale. The mortgage so foreclosed was the first lien on the premises. On January 10, 1908, Mr. Mattern and wife also gave a second mortgage to Simmons & Bodmer to secure the sum of $418, and on August 25, 1908, they gave a third mortgage to the Advance Thresher Company, to secure the sum of $1,926.34. The defendant, Neis Nelson, was a guarantor on the notes secured by the Advance Thresher Company’s mortgage, and the testimony in the case is in conflict as to how much remains unpaid 'of this mortgage, although the trial court made a finding that the mortgage was not paid. The second mortgage to Simmons & Bodmer was afterwards assigned to the defendant, Nelson, and on June 10, 1912, he redeemed from the foreclosure under the first mortgage by serving notice of redenqption and at the same time paying the amount of the foreclosure certificate with interest to the sheriff of Eenville county, who thereupon issued a certificate of redemption to Nelson. A. duplicate of the notice served on the sheriff,-however, was not filed in the office of the register of deeds. No objection, however, was made to this irregularity by the sheriff or by Mary M. Brackett, but she accepted the money paid by the defendant, as redemptioner, and in every respect recognized the validity of the redemption, and this has never, been questioned by anyone except the plaintiff in this aption. On January 30, 1912, Mattern and his wife conveyed the
The only references in the complaint to the redemption attempted to be made by the plaintiff in this case are the following clauses, viz.: . . . “That the said plaintiff has tendered in gold coin of the United States the sum necessary to make such redemption to the said defendant, Neis Nelson, but he refuses to accept the same,” and “that the plaintiff has served upon said defendant a notice of his intention to redeem, and filed a copy of such notice with the register of deeds of Benville county, North Dakota.”
Some mention is made in the majority opinion of the alleged fact
The plaintiff, Fox, testified.
Q. At the time that you tried to make such redemption did you tender to the defendant, Nelson, the sum stated in plaintiff’s Exhibit 3?
A. Yes.
Q. Did he refuse to accept the same ?
A. Yes, sir.
And the defendant, Nelson, testified as follows:
Fox, Cole, and Thronson came over to my place of business in Ken-mare and said they were going to redeem that farm. At that time they tendered me about $2,300 for the purpose of redeeming.
Q. What did you say to him?
A. I said I would not accept it unless they paid up my Advance mortgage, too.
Q. They would not pay that?
A. They refused to do that.
Among the defenses set forth in the answer are: (1) That plaintiff did not redeem from defendant within sixty days after the date of the redemption made by the defendant; (2) that on or about June 12, 1912, and at various times thereafter, plaintiff stated to defendant that he (the plaintiff) was the owner of the land, and always led defendant to believe that the deed held by the plaintiff was an absolute conveyance, and that plaintiff represented to the defendant that he was the owner of the land; that defendant relied on these statements, and for that reason made no redemption under'the mortgage assigned to him by the Advance Thresher Company.
The majority opinion rests almost wholly upon the decision of the supreme court of South Dakota in the case of Spackman v. Gross, 25 S. D. 244, 126 N. W. 389. The laws of South Dakota relative to
Section 5541 of the Rev. Codes of 1895 is the same as § 7754 of the Comp. Laws of 1913, and § 5854 of the Rev. Codes of 1895 is the same as § 8085 of the Comp. Laws of 1913. It will be observed that both of these sections expressly limit the time within which redemption may be made to one year, but these sections, of course, must be construed in connection with the amendatory acts of the legislature.
The great fundamental rule in construing statutes is to ascertain and give effect to the intention of the legislature, and every statute must be construed with reference to the object intended to be accomplished by it. And in order to ascertain this object it is proper to consider the occasion and necessity of its enactment, the defects or evils in the former law, and the remedy provided by the new one. The act of the legislature of this state in 1897, as already stated, followed the decision of this court in State ex rel. Brooks Bros. v. O’Connor, and the obvious purpose of the legislative enactment, as appears from the language thereof, was to change the law of this state as interpreted by that decision, and in every instance give a whole year to the debtor and every redemptioner in which to make a redemption, and to eliminate the provision existing in the former law, limiting the time in which a redemptioner might redeem from a prior redemptioner to sixty days. And in order to prevent any redemptioner from being taken by surprise, it was further provided that in every instance the redemptioner should have at least sixty days in which to redeem from a prior redemptioner. The purpose of this amendment is apparent; (1) to give every person entitled to redeem a full year in which to do so, and (2) in the event a redemptioner came in on the last day or within the last few days prior to the expiration of the year prepared to make his redemption, and found that some other redemptioner had redeemed shortly before, the additional sixty days would give the person so seeking to redeem ample time in which to prepare new papers and in general do everything that would be necessary to effect his redemption. It will be observed that under the provisions of § 5544 of the 1895 Rev. Codes, it was made a condition precedent to the issuance of a deed not only that redemption be made, and that the sixty-days limi
The legislature of this state has by law given every person a whole year in which to exercise the right of redemption, and under certain conditions an additional sixty-day period is provided. And in order to provide that all persons should have not only constructive but actual notice of foreclosures, the legislature in 1909 enacted a law (§ 8095, Comp. Laws) making it the duty of the register of deeds to notify the record owner and all subsequent mortgagees within ten days after the filing of the sheriff’s certificate and notice of publication in the register of deeds’ office. It would therefore seem that the present laws are adequate to protect the interests of all parties. If, however, they are not, the remedy is with the legislature, and not with the court, and in no event does it justify or warrant this court in performing the functions of the legislature, and by judicial fiat amend the statutes of this state, as the majority do in this case.
As already stated, the majority opinion rests upon the decision of the supreme court of South Dakota in the case of Spackman v. Gross, 25 S. D. 244, 126 N. W. 389. The laws of South Dakota relative to redemptions, and construed in that opinion, are identical in every respect with the redemption laws of this state as they existed prior to their amendment by the legislature in 1897. In the case of Spackman v. Gross, the mortgage was foreclosed on December 29, 1906, and on January 29, 1907, about a month after the foreclosure, Spackman redeemed under a subsequent mortgage. The duplicate of the notice of redemption was not filed in the office of the register of deeds, but recorded at length. On December 28, 1907, one year, less one day, from the date of the foreclosure sale, another mortgagee, named Johnson, holding a mortgage subsequent to Spackman, sought to malee redemption, and the supreme court of South Dakota held that the recording of the notice of redemption did not constitute a compliance with the statute, and that for that reason the sixty-day limitation did not apply, and says: “Johnson had the right to redeem at any time within the
Section 7756 of the Compiled Laws provides that “written notice of redemption must be given to the sheriff,” and § 8086, Comp. Laws provides that “notice of redemption may be given to the officer or person making the sale.” There is no allegation in the complaint, and absolutely no evidence that Fox paid or tendered any money to, or served any notice upon, the sheriff of Renville county, who was also the person making the sale, but the only thing which Fox did was to serve a notice upon the defendant, Nelson, and tender him certain moneys, and then, tioo days after the commencement of this action, file a duplicate of the notice so served with the register of deeds. TIence, it is apparent that plaintiff did not seek to avail himself of the method provided by statute, by making payment to the sheriff, but sought to extinguish the obligation by making payment to the then holder of the certificate of purchase. While the law permits payment to be made either to the sheriff or to the holder of the certificate, still payment to one of these parties is an absolute essential prerequisite to a redemption. And under our laws a method is provided for the payment of an obligation, even though the person authorized to receive payment refuses to accept, — namely, by tender and deposit in the manner provided by law. So the plaintiff could, if he desired, pay the moneys required to make redemption to the defendant, Nelson, and such payment would extinguish defendant’s claim (conceding that Fox was entitled to redeem). Fox, however, did not pay, but merely tendered payment. In this case it is not contended by plaintiff, either in the pleadings or in the proof, that the tender was kept good; in fact this is negatived by the very allegations in the complaint. The tender did not pay the debt. Neither did it devest the title of the defendant, Nelson, as the owner and holder, by operation of law, of the certificate of purchase.
This question was squarely passed on by the supreme court of Minnesota in the case of Dunn v. Hunt, 63 Minn. 484, 65 N. W. 948, wherein that court said: “We apprehend that no case can be found where a tender was essential to or the foundation of an action, and where it was held that the tender was effectual unless kept good. Equity is no less strict than the law in this respect. In this case, plain
It is conceded that Mattern could not redeem unless he did so within one year after the date of the sale. And it must likewise be conceded that if the plaintiff, Fox, is merely the purchaser of the equity of redemption, that then he can have no greater right to redeem than did Mattern. The plaintiff, however, claimed that, as a matter of fact, his deed was only a mortgage; but the trial court found that the plaintiff had represented to the defendant that he was the owner of the property, and this fact is undisputed under the evidence in this case.
The defendant, Nelson, testified with reference thereto as follows:
Q. And, Mr. Nelson, did you during all this time, both before you made your redemption and afterwards, rely fully upon that statement both of Mr. Fox and Mr. Thronson, that Mr. Fox was the owner of that land ?
A. I did.
Q. And it was on the full reliance on that that you went ahead and made your redemption?
A. Yes.
Q. And tried to make settlement with Mr. Fox?
Á. Yes, sir.
Q. When did you first learn that Mr. Fox claimed to hold this deed as a mortgage?
A. Sometime in September.
*613 Q. That same year?
A. 1912, yes.
Q. That was after the expiration of the year?
A. Tes, sir.
And his testimony is not denied either by Fox or any other witness for the plaintiff. It is therefore clearly established in this case that Fox held himself out to be the owner not only on the records, but by actual statements to Nelson induced him to believe that Fox claimed as owner, and not as mortgagee. Nelson acted in absolute reliance upon the fact that Fox claimed as owner; and it is undisputed that the first time that Fox indicated to Nelson that he claimed as mortgagee was on September 10, 1912, when he attempted to redeem. Nelson was therefore misled by these statements, and Fox should not at this time be permitted to assume a contrary position. It is axiomatic that “one must not change his purpose to the injury of another.” When Nelson redeemed, he believed Fox to be the owner. Under all rules of equity, Fox should be compelled to adhere to the position which he had assumed, viz., that of the owner of the premises. 16 Cyc. 722; 27 Cyc. 1033, note 83; see also McVay v. Tousley, 20 S. D. 258, 129 Am. St. Rep. 927, 105 N. W. 932; McVay v. Bridgman, 21 S. D. 374, 112 N. W. 1138; Bigelow, Estoppel, p. 732.
The majority opinion, after quoting with approval certain language used by the South Dakota court , in Spackman v. Gross, proceeds to qualify and limit the application thereof. In fact the very limitation sought to be placed thereon is in direct conflict with reasoning advanced by the South Dakota court in the language quoted. The South Dakota court was at least consistent in its language and logic, and contented itself with an interpretation of the statutes under consideration. The majority of this court is neither consistent nor logical, but bases its. conclusions upon certain language used by that court, the very essence of which it repudiates; and, then, to obviate to some extent the chaos which is likely to result and the uncertainty created in all land titles in this state based on irregular redemptions, proceeds to legislate in. the most flagrant manner possible. The very limitation added is, of course, dicta,, as it is not necessary to a determination of the issues involved herein. And it is rather strange for a court which substitutes;
The South Dakota court was consistent both in its language and reasoning, — it did not resort to judicial legislation, — and the result reached by that court was logical. That court said: The statute provides that the notice of redemption must he filed in the register of deeds’ ■office. The first redemptioner failed to do this; therefore the rights of other .redemptioners are unaffected, and they stand in the same position as though the first redemption had never been made. If this reasoning is applied to the case at bar, it will lead, not to the conclusion reached by the majority in this case, but to one entirely different. If Fox’s rights were unaffected, they necessarily remained the same as though Nelson had never redeemed; and if so Fox had a year in which to redeem, — no more and no less. The majority members of this court say in one sentence that unless the notice of redemption is filed, that the rights of subsequent redemptioners are unaffected; and in the next sentence deny the first proposition, and say that the rights of subsequent redemptions are (favorably) affected, as the time in which subsequent redemptioners are required to redeem does not commence to run until the notice is filed, i. e., that a subsequent redemptioner has a period of
The majority opinion cites North Dakota Horse & Cattle Co. v. Serumgard, 17 N. D. 466, 29 L.R.A.(N.S.) 508, 138 Am. St. Rep. 717, 117 N. W. 453; Colonial & U. S. Mortg. Co. v. Flemington, 14 N. D. 181, 116 Am. St. Rep. 670, 103 N. W. 929, and Paine v. Dodds, 14 N. D. 189, 116 Am. St. Rep. 674, 103 N. W. 931, and intimates that some rule of property has been established by these cases which is involved in the case at bar. An examination of these decisions will show that by no possible means of reasoning could any principle decided in those cases, or any rule of property established thereby, be involved or determined in this case. “A ‘rule of property’ is a ‘settled legal principle governing the ownership and devolution of property.’ This principle can be settled only by the supreme court of the state, and its utterances, in cases pending before it involving the title to property, construing statutes or constitutional provisions, have the effect of establishing a rule of property to the extent only that the particular statute or constitutional provision was in that case involved, or necessarily considered and determined by the court in the- case then pending before it.” Yazoo & M. Valley R. Co. v. Adams, 81 Miss. 90, 32 So. 937; see also Black’s Law Dict. 34 Cyc. 1821; 24 Am. & Eng. Enc. Law, 1011. The propositions involved in the three cases cited are radically different from the one involved in this case. Neither the principles nor the particular statute involved in this case was in any manner considered, directly or indirectly, in the cases cited. And to say that this case is governed by any rule of property established by this court in those decisions is wholly untenable, and an entire misconception of what is meant by the term “a rule of property.” An entirely different condition exists, however, with reference to the cases of McDonald v. Beatty, 10 N. D. 511, 88 N. W. 281, and Brown v. Smith, 13 N. D. 580, 102 N. W. 171. Those two cases passed upon and directly decided two of the very principles which are involved in this case, and, hence, those decisions are clearly rules of property which are entirely ignored by the decision of the majority in this case. And
This is not an action wherein the benefit of the redemption law is invoked by an owner to save his property; but where a man of affairs • — the president of a bank — stands idly by, and when he finds that Nelson has failed to file an affidavit of the amount due on the Advance Thresher Company’s mortgage, sees a good speculation in the deal, and so tries to come in and redeem. Under the decision of the majority, Nelson is penalized for relying on the statements made to him by Fox, and precluded from realizing anything on the amount still due on the Advance Thresher Company’s mortgage. He is deprived of a valuable, vested property right, by one who has no standing either in a court of law or equity, — by a speculator who has failed to either allege or prove any facts entitling him to recover. The majority decision in my opinion is a most dangerous precedent. It in effect overrules two prior decisions of this court, which have become rules of property in this state; and upsets the settled law of this state upon a subject of vital importance. It will tend to make titles based on redemptions unsafe and undesirable, because there are doubtless many redemptions wherein similar irregularities have occurred, and expensive and vexatious litigation may follow. I respectfully decline to subscribe to the logic, legal principles or equitable doctrine adopted by the majority. In my opinion the decision is indefensible from every possible standpoint. I am authorized to say that Chief Justice Fisk fully concurs in my views.
Concurrence Opinion
(concurring). I fully concur in the main opinion. My purpose is to discuss the dissent. This case comes here for trial de novo. But the pleadings and contentions presented below and here must largely shape our retrial. Doubtless the dissenting members
Was the attempted redemption otherwise sufficient in time, omitting fx*om consideration the validity of the thresher mortgage? Half the dissent is devoted to a statement of the statutes. It is not the first labor that has brought forth a mouse as its progeny. And that as the basis for erroneous reasoning consists in an assuxnption, pure and simple, that in the 1897 amendment to § 5544, Eev. Codes 1895, the filing of written notice of redemption with the register of deeds was dispensed with because the identical provisions concerning notice were not carried forward into § 5544, as re-enacted by chap. 121, Sess. Laws of 1897. Section 5544 required notice of redemption by the words “and notice
It is true that the purpose of the 1897 amendment was to obviate the effect of State ex rel. Brooks Bros. v. O’Connor, 6 N. D. 285, 69 N. W. 692, under which holding, where a redemptioner redeemed from the purchaser soon after the sale, for instance, within a month from the sale, a would-be subsequent redemptioner must redeem within sixty day from the first redemption made, even though it be nine months before the year from sale, or be shorn of his right to redeem at all. The-
In the dissent is found another untenable doctrine, not advanced by respondent, but born in the ingenuity of the writer of.the dissent. It would apply the law of tender governing law actions to equity suits, and disregard the doctrine of equitable tender. Offer in the pleadings to do equity entitles petitioner to relief, if otherwise equity should intervene. 16 Cyc. 141. Brown v. Smith, 13 N. D. 580, 102 N. W. 171, is cited in the dissent as applicable. That was an action to recover possession of personalty. It was tried and a verdict directed, and on appeal a new trial was ordered. A law appeal with a law judgment awarded. The case before us is not one of an attempted discharge of an obligation by payment, and the rules relative to tender thereunder cannot apply. It is a distinct branch of equitable jurisprudence. Pom. Eq. Jur. § 8. As stated in the dissent, “the tender did not pay the debí." Equity will still pay Nelson his debt and grant Fox his right to redeem. The question is whether equity will allow subrogation after a statutory tender for redemption purposes has been made. Our redemption statutes do not require that a redemptioner shall lose his equitable rights unless he keeps good his tender by deposit, as on discharge of an obligation. The equitable right accrues immediately upon tender made, and may be enforced. Payment into court as a condition for granting of equitable relief may be compelled instead. In equity the money is deemed in court. The decree will care for that. In my opinion the dissent is in all things unsound.
Dissenting Opinion
(further dissenting). Since the foregoing dissent was prepared, a concurring opinion has been written by Justice Goss for the conceded purpose of discussing the dissenting opinion. This procedure is, to say the least, somewhat anomalous, as I believe the books will be searched in vain for another instance where a majority
The concurring opinion expresses its approval of the case of McDonald v. Beatty, cited in the dissenting opinion, and disclaims any intention to overrule the holding in that case. It is inconceivable how this can be seriously asserted. The principle announced in McDonald v. Beatty was that a junior or subsequent redemptioner could in no manner question the regularity of a redemption, but that the only person who could successfully question the regulañty thereof was the holder of the certificate of purchase. The doctrine promulgated by the majority in this case is directly to the contrary, still it is asserted by Justice Goss that McDonald v. Beatty is not departed from.
The discussion in the concurring opinion of the present laws in this state regarding redemptions, and the so-called statute of limitations formerly existing in this state, identical with that construed by the supreme court of South Dakota in the case of Spackman v. Gross, indicates not only failure to distinguish the difference existing between the statutes in question, but also a failure to comprehend between the different principles which are involved in the two cases. Under the law construed in Spackman v. Gross, the rights of two classes were involved; first, those of the holder of the certificate; and second, those of subsequent redemptioners, because in the absence of a redemption any person (entitled to do so) might redeem within one year from the date of sale, but a redemption reduced the period in which a subsequent redemptioner might redeem to sixty days after such former redemption was made. Therefore, a redemption made during the year of redemption would limit and restrict the rights of other redemptioners. Under the laws now existing in this state a redemption can in no manner adversely affect the rights of a subsequent redemptioner. Un
The concurring opinion, in discussing the question of estoppel, presents this remarkable proposition: “Can a redemptioner be estopped from exercising his right of redemption, forsooth, because not a lawyer, he made a misstatement concerning the tenure of his holding, the legal effect of what in law constituted his mortgage?” The very assertion that Fox, the president of a National Bank, did not know the difference between a case where he had actual ownership of land, and others where he held it as security for payment of debts due him or his bank, is so absurd that it requires no answer. It is also asserted thát Nelson suffered no injury. This is equally untenable. It should be remembered that Nelson owned all the encumbrances against the land, and that if Fox held as owner, then it was not necessary for Nelson to file any affidavit of the various liens he held, as a redemption by Fox as owner would merely constitute payment of the foreclosure certificate. The trial court found that the Advance Thresher Company’s mortgage had not been paid, and I am satisfied that this finding is
Tbe concurring opinion also intimates tbat an unscrupulous redemptioner might suppress tbe notice of redemption, and intentionally withhold it from record. How could it possibly injure a subsequent redemptioner ? Such redemptioner would have at least as long a time in which to redeem as though the former redemption bad not been made. And tbe law has prescribed exactly what he must pay to effect a redemption, and has designated the sheriff of tbe county as the agent for tbe person entitled to receive the redemption money. This argument in tbe concurring opinion is so fallacious that a mere statement of tbe proposition demonstrates its unsoundness. And in this case it is undisputed that Fox had actual notice of the redemption made by Nelson.
The concurring opinion speaks of an “unscrupulous redemptioner,” and a “forfeiture,” and refers to other matters which can have no application in this case. Tbe only rights forfeited in tbis case are those of Nelson. Under tbe bolding of tbe majority, Fox is given an opportunity to redeem if be sees fit to do so; but if for some reason be does not care to redeem, there is no way whereby tbe defendant can compel him to do so. Plaintiff has not placed one cent where defendant can get it. The decree is one-sided. The option is given to tbe plaintiff. Not only is tbis true, but Fox is also relieved from tbe payment of interest. It is conceded tbat be has never deposited tbe money in a bank for the use of the defendant, nor paid the same into court, and yet tbe majority says, not only that plaintiff shall be
The concurring opinion also criticizes the citation of Brown v. Smith, supra, in the dissenting opinion, and says that that case was an action at law. It will be observed, however, that the holding in that case is based solely upon a construction of the statutes of this state relative to the sufficiency of a tender to effect a redemption from a chattel foreclosure sale. Will it be contended that a statute means one thing in an action at law, and another in an equitable action? A court of equity is not superior to law, but is a creature of the law, and just as much subject to and bound by the laws of this state as a •court of law. One of the maxims of equity is that “equity follows the law.”
I am compelled to adhere to the views expressed in my former dissent, as well as those expressed above, in all of which Chief Justice Fisk fully concurs. .
