65 Minn. 391 | Minn. | 1896
For the purposes of this trial, and in order to relieve the parties from the necessity of calling witnesses, they stipulated as to certain facts, and the finding of the court below reads as follows:
“First. From January 1, 1891, to January 1, 1893, said defendant was the duly elected and qualified sheriff of said Hennepin county.*392 Second. On the 8th day of October, 1891, the above-named plaintiff was the owner of a sheriff’s certificate of mortgage foreclosure covering, and in which certificate was described, lot 4 and north half of lot 5, block 11, Bloomington Avenue addition to Minneapolis, situated in said county, made pursuant to a mortgage foreclosure sale of said premises, which sale was made by the sheriff of said county on October 13, 1890. There was due on the 8th day of October, 1891, on said sheriff’s certificate, the sum of $469.11. Third. On said 8th day of October, 1891, one Andrew F. Hilyer, the owner of the fee of said premises, made redemption thereof from said mortgage foreclosure sale, and paid the said defendant, the sheriff of said county, in redemption thereof, the sum of $469.11, and the certificate of redemption made pursuant thereto and in accordance with the law was duly recorded in the office of the register of deeds of said Hennepin county on October 8, 1891. ■ Fourth. Thereafter, and before the commencement of this action, plaintiff made demand upon defendant for said money paid to said sheriff in redemption of said premises from said foreclosure sale. Said defendant refused to pay the same to plaintiff, and no part of said sum hás ever been paid to plaintiff. Fifth. This action was begun by serving summons and complaint upon defendant April 20, 1895.”
Upon the facts the trial court found as conclusions of law as follows:
“(1) The said money was received and retained by said defendant in his official capacity, and in virtue of Ms office. (2) This action not having been commenced within three years from the time the money was paid defendant, the claim is waived. (3) Plaintiff is entitled to take nothing by this action, and defendant is entitled to judgment for his costs and disbursements herein.”
The appeal is from an order denying plaintiff’s motion for a new trial.
The defendant contends, and this contention was sustained by the trial court, that, this action not having been commenced within three years after the receipt of the money by the defendant, the action is barred by the first division of section 5137, G-. S. 1894, which reads as follows:
“An action against a sheriff, coroner or constable upon a liability by the doing of an act in his official capacity, and in virtue of Ms office, or by the omission of an official duty, including the nonpayment of money collected upon an execution.”
In our opinion, the mere failure of a sheriff, receiving money on a redemption of real estate made through him, to pay the same to the party entitled thereto before any demand is made upon him for- it,
“The person desiring to redeem shall pay to the person holding the right acquired under such sale, or for him to the sheriff who made the sale, or his successor in office, the amount required by law for such redemption.”
In receiving this redemption money he acted as 'the custodian of the law, and not as the agent of either party. Horton v. Maffitt, 14 Minn. 216 (289); Davis v. Seymour, 16 Minn. 184 (210). It was received by the sheriff by virtue of his office. In re Grundysen, 53 Minn. 346, 55 N. W. 557. There is no affirmative duty imposed upon the sheriff by positive law to hunt up the mortgagor, and notify him that the redemption money is in his hands. The statute expressly provides
As to whether there might not be cases where the circumstances would be of such a nature that the sheriff would be put to some active duty in paying over the money before an actual demand was made, or whether the statute of limitations would not run in any event in six years from the receipt of the money, are questions not involved in a decision of this case, and as to them we express no. opinion.
The facts in this case show no misappropriation of funds or the redemption money, nor any attempted, by the sheriff. It was conceded upon the argument that no demand was made until after the expiration of the three years from the time defendant received the redemption money, viz. October 8, 1891. Hence the three-years limitation does not apply to the action, and it was not barred before its commencement.
The order denying a motion for a new trial is reversed.
G. S. 1894, § 6042.
Section 6043.
