159 N.W. 895 | S.D. | 1916
The matter in dispute relates to the -ownership and- right of possession o-f the mining properties- of the- Branch Mint Mining & Milling -Company. Reference is matte to Phillips v. Branch Mint Mining & Milling Co., 27 S. D. 350, 131 N. W. 308; Hardin v.
On September 4, 1909, Hardin became the o-wner of the equity of the mining company in the property by virtue of a re'ceiver’-s -deed issued1 unider receivership proceedings in -the state court in the Phillips case.
Hong prior to the lien claim's anidi -the claim of Hardin-, the mining company had mortgaged the property to- the Union Trust Company as trustee for the purchasers of -a bond issue. In February, 1910, the trustee 'began1 'foreclosure suit in- the then United States 'Circuit Court for the -district of South Dakota, to which Hardin 'was a party. On Ju-ly 27, 1910, judgment was entered -decreeing foreclosure of the -mortgage, which judgment w!as affirmed in the- United States Circuit .Court of Appeals decision above referred1 to, -and! a writ of 'certiorari w.as denied in the United States Supreme 'Court decision above referred to. From a sale under foreclosure of the miners’ liens in the Phillips case, the Union Trust Company became a .rede-mptioner and -obtained redemptiolner’s -deed on January 8, 1912. It thereafter deeded) the property to John Stokes Ad'ams, who in turn deeded it to- Graham on March 24, 1913. The -money for such redemption was advanced- to the Trust Company -by Graham, one of the bondholders. It is -conceded' by the parties' that the certificate of sale under the miners’ lien foreclosure was the paramount lien on the property.
During the pendency of -the forcl'osure suit ini the federal court two receivers were appointed by -that -court to take charge of the property, and) an order for the sale of the property was made to satisfy certain receivers’" 'certificate® issued 'during the pendency of said suit. (The receivers hereinafter referred to1 -in this opinion are these receivers and not 'the receivers • in the state -court hitíberfo referred to.) Graham obtained a receivers’ -certificate for the money advanced by himi to the trust company to effect the .redemption1 from the Phillips lien sale. At the receivers’ sale held ion February 5, 1913, Graham became the purchaser, and in satisfaction of hisi bid of $20,552.64 turned over receivers’
“Sluice boxes-, flumes, hose, pipes,' railway tracks, cars, blacksmith shops, mills, arid all other 'machinery or tools used in working or developing a mine, are to be deemed affixed1 to the mine.”
These things are considered to he real property. The important question in this case is, therefore, whether the federal court had authority -to authorize ¡the receivers to- sell real property without the right of redemption.
Many decisions so hold where the property .consists 'both of real -and1 personal property, -and it is not feasible to sell the different kinds of property separately, or where the purpose of the s-u-it is the 'winding -up of the affairs of an insolvent corporation. Hammock v. Farmers’ Loan & Tr. Co., 105 U. S. 77, 26 R. ed. 1111; Nat. Foundry & Pipe Works v. Oconto Water Co. (C. C.) 52 Fed. 43; Oconto Water Co. v. Nat. Foundry & Pipe Works, 59 Fed. 20, 7 C. C. A. 603; McKenzie v. Bismarck Water Co., 6 N. D. 361, 71 N. W. 608; Farmers’ L. & Tr. Co. v. Ottumwa Nat. Bk. (C. C.) 78 Fed. 881: Pacific N. W. Packing Co. v. Allen, 116 Fed. 312, 54 C. C. A. 648; Merc. Realty Co. v. Stetson, 120 Iowa, 324, 94 N. W. 859; Blair v. Illinois Steel Co.,
The jurisdiction' of ¡the federal court was invoked for the purpose of foreclosing the mortgage. When that court appointed receivers -in the foreclosure suit such powers as the court could confer on the receivers were piolwersi under -and by virtue of the mortgage. ¡Under the mortgage itself no s'ale could be made .which would! -cut off the right of redemption. Subject to the light of redemption, the court had • power to order a sale of -the -property, to .pay the mortgage debt or any claim incidental to- the. mortgage debt. Although an unusual practice, we do not question the powers of the federal court to order a separate sale of the mortgaged property to raise the amount of the advancements that were made to' preserve the property .-and for the expense of the receivership!; but inasmuch as those -advancements were merely incidental to the foreclosure of the mortgage, a sale thereunder coiu'lid give no greater rights than those secured .'by the
We must therefore 'hold' 'that Handlin was entitled to redeem from -the receivers’ sale at the time he made his tender. Inasmuch as the mortgage still stands unforeolosed and rests upon the unexecuted decree of foreclosure, Hardin had the right to redeem from' the receivers’ sale without paying or tendering the amount 'due under such decree, which decree will; after redemption is made by him, still stand as an incumbrance upon the property.
The judgment appealed1 from 'is reversed, and the trial count is directed to enter judgment allowing Hardin within a reasonable time to pay into court the amount requisite to redeem from (die sale made by the federal court receivers, and that upon such payment title to1 the 'premises be decreed1 to- be in him subject to the unexecuted decree of foreclosure hereinbefore referred to. If Hardin shall fail to malee such redemption within such reasonable time as the Court may direct, then the judgment appealed from may be re-entered.