191 N.W. 615 | N.D. | 1922
Lead Opinion
This is an appeal from a judgment in favor of the defendant in an action to recover damages for conversion. One C. P. Burnstad, in January 1920, executed a chattel mortgage to the defendant to secure the payment of an indebtedness of $50,000, payable July 15, 1920. This mortgage was foreclosed and the property sold ■on March 31, 1921. On the day of the sale and about an hour thereafter, the mortgagor served upon “John Anderson, agent for the Stock Yards National Bank of South St. Paul, Minnesota, and H. B. Scott, St. Paul, Minnesota, agent,” a notice that he would redeem thirty-four steers and two other small items of personal property from the sale. By written assignment, dated April 4, 1921, Burnstad, the mortgagor, assigned to Emil Harth, plaintiff in this action, his equity of redemption from the foreclosure sale. The thirty-four steers had been sold for $918. On April 4th, the plaintiff tendered to Andersen $988, and demanded immediate possession of the cattle. He also served notice that he had deposited in the E'irst National Bank of Napoleon the sum
In order for the plaintiff to sustain a recovery as for conversion in this action, it is incumbent upon him to establish the sufficiency of the notice of intention to redeem and that a proper tender was made. The defendant and respondent argues that the notice is insufficient in that it refers to a mortgage executed to the Stock Yards National Bank while the mortgage on these cattle that was in fact foreclosed was that of the St. Paul Cattle Loan Company, which company had made the sale through one Anderson, its agent; and further in that it was addressed to and served upon Anderson as agent for the bank instead of to and upon him as agent for the mortgagee in this particular mortgage. The statute, § 8134, provides:
“The mortgagor or his assignee desiring to redeem such property shall at the time of sale give written notice to the person malting the sale of his desire to make such redemption; otherwise he shall be deemed to have waived his right to do so.”
This statute, in so far as it provides for redemption, is remedial in character and designed to serve the purpose of enabling a mortgagor who is in default to regain his property after sale by discharging the indebtedness to the extent that it has been realized out of the property. If he has any equity in the property, the statute permits him to realize on it, but, as a condition of so doing, he is required to apprise the person making the sale of his intention to that effect. We think the statute is one that should be liberally construed to effect the legislative inten
Three wagons $ 71.00
One manure loader $ 10.00
Thirty-four steers $918.00
“This property was sold by you this day under two mortgage foreclosures, both mortgages were made by the undersigned payable to the Stock Yards National Bank.” The fact is that Anderson acted as agent for the Stock Yards National Bank in foreclosing its mortgage, the sales being noticed and held at the same time. It will be seen, then, that the notice is addressed to the person who acted as agent in the foreclosure of the mortgage in question, but the wrong principal or mortgagee was named. It described the steers and referred to them as having been sold under mortgage foreclosure, and they were not sold under any other mortgage. In so far as this property is concerned, therefore, it is identified as property which the agent who received the notice must have known had been sold under the defendant’s mortgage and not under that of the Stock Yards National Bank. We think that under a fair construction the notice apprised Anderson, agent of the defendant herein, that the mortgagor intended and desired to redeem the thirty-four steers from the mortgage that was actually foreclosed on them, and that his knowledge to this effect is attributable to his principal, the defendant. We are of the opinion that the notice was sufficient.
It is said that the tender was insufficient in amount in that only $70 above the sale bid was allowed to cover the costs of sale and the reasonable expenses of caring for the property redeemed and interest. A report of this sale, filed on April gth, shows total sheriff’s fees on
It is thus apparent that the legislature has deliberately subjected the redemptioner to the peril of having to guess at the amount of costs which ho will include in his tender of redemption money. We cannot cure this defect in the statute by judicial fiat. It is suggested, however, that a distinction was intended to be observed between “costs of sale” to be included.in the redemption money, and some other expenses that might have been incurred prior to the sale; such, for instance, as the expenses incidental to obtaining possession of the property, and that if such expenses be excluded, the amount tendered Avas sufficient. We are iinable to glean from the statute any satisfactory basis for the distinction claimed. In fact, the statute appears to us to have been framed upon no consistent principle whatever in reference to the costs of sale. The owner of the mortgage is, of course, made whole, so far as the foreclosure is concerned, if he receive the amount of the hid, plus interest and subsequent expenses. Similarly, if the property is purchased by any third party, he is made whole Avhen the amount of his bid, interest and subsequent expenses may be tendered to him, or refunded' by the agent who made the sale. Then too-, § 8129 requires the one who conducts the sale to pay the costs and expenses of foreclosure from the proceeds of the sale, that is, out of the amount bid, and directs the bal,ance only, to be credited on the mortgage indebtedness. Hence, in the absence of a redemption, the costs come out of and are represented in the amount bid, and we can perceive of no reason for imposing, as a condition of redemption, the payment of an additional amount as representing costs or expenses prior to. the sale. Whatever reason was sufficiently potent to cause the legislature to require a redemptioner to tender anterior costs in addition to the amount bid, Ave can see none at all, would apparently operate with -the same force upon chargeable items of every character anterior to the sale. This statute Avas long ago characterized by this court as a “very crude piece of legislation,” Brown v. Smith, 13 N. D. 580, 583, 102 N. W. 171, and its crudeness
Concurrence Opinion
(specially concurring). This is an action for conversion. Plaintiff is the assignee of the mortgagor’s right of redemption concerning cattle sold at a mortgage foreclosure sale. Pour days after the sale on April 24th, 1921, the mortgagee, for a recited consideration of $100, assigned to plaintiff his right of redemption. Then, on that day, plaintiff tendered to defendant $988, as inclusive of the sale price, the cost of sale, and the costs of keeping since the date of sale, with interest. Plaintiff also notified defendant that he had on that day deposited in the First Nat’l Bank of Napoleon, North Dakota, $988 payable to the order of defendant or its agent upon delivery to the bank of a certificate of redemption carrying with it the possession of the cattle.
The assistant cashier of the bank testified that plaintiff deposited in the bank $1,000; that the bank carried the money on open account; that it was deposited with instructions the same as those given in the notice to defendant; that it was carried in a kind of blanket trust account and that, thus, the money is still at the bank.
Thus, does it appear that plaintiff, as a redemptioner, seeks a recovery at law upon technical rights, and not the right to redeem under equitable principles. lie seeks the right to receive the verdict of $525.04 awarded for a consideration of $100 paid. To be entitled, as a matter of law, to this right plaintiff must show compliance with the law.
In my opinion the deposit made was, at law, insufficient. Upon redemption from a lien, the law specifically requires an offer of performance to be followed by a deposit. Comp. Laws, 1913, § 6719. Under the law the deposit required was a deposit of the money offered in the
Dissenting Opinion
(dissenting). This is an appeal from a judgment in favor of defendant notwithstanding a verdict against him for $525. On March 31, 1921, at a chattel mortgage sale, one John Anderson, an appointed agent of the mortgagee defendant, offered for sale at public auction twenty-seven steers and sold the same to the defendant for $918. The plaintiff gave due notice of intention to redeem and within five days from the date of sale he offered to redeem by paying to the agent $918, with $70 for cost of sale, interest, and subsequent expense. It does not appear that the agent refused to allow a redemption because the $70 was not sufficient. The jury found that it was sufficient and there is no evidence to the contrary.
The redemption statute is to this effect: That a mortgagor or his assignee having given the proper redemption notice, may redeem the property sold at foreclosure sale within five days after the sale “by paying or tendering to the owner of the mortgage, his agent or attorney, or the person making the sale, the amount for which the property was sold, with the cost of sale and interest at the rate of 7 per cent from the date of the sale. And the reasonable expenses in caring for the property after the sale.” Comp. Laws, 1913, § 8134. It may be true that this statute is “a crude piece of legislation,” but that is no reason for this court by a narrow and crude construction to defeat its purpose
But it is said: The report of sale shows the total of the sheriff’s fees on account of the foreclosure was $204. That is not true. The report merely shows a lump sum of $204 for sheriff’s fees. There is no itemized statement to show any legal charge by the sheriff. But that is of no consequence. The sheriff did not make the sale. And the statute does not provide that a redemptioner must pay the cost of foreclosure. It is only that he shall pay the cost of the sale, with interest, and the subsequent care of the property.
It does not appear that the agent refused to allow a redemption because the $70 was not sufficient. The jury found that it was sufficient and that finding is correct. The answer does not state the cost of the sale or show that the refusal to allow a redemption was because of the failure to pay or tender any specified amount. In fairness, if the mortgagee or his agent claimed that the sum tendered was not sufficient, it was for them to show the exact sum necessary to redeem. But ob: viously the sum tendered was sufficient and the judgment against the plaintiff should be reversed and judgment entered in his favor on the verdict.
Concurrence Opinion
I concur in the greater part of the reasoning and the result herein.
