38 Minn. 70 | Minn. | 1887
Lead Opinion
Demurrer to the complaint. The plaintiff shows title to the land in question derived by purchase at a mortgage foreclosure sale in December, 1885. It also appears that the defendant Andrew J. Finnegan is the assignee of a judgment recovered in a justice’s court against the mortgagor, subsequent to the recording of the mortgage, and subsequently docketed in the office of the clerk of the district court; that such judgment was in fact rendered without any jurisdiction having been acquired over the person of the judgment debtor, no summons having been served, and no return of any service having been made; that the judgment debtor had tendered full payment of the same, which had been refused; that Finnegan, having filed notice of his intention to redeem from the foreclosure sale, within the proper time for making such redemption, fraudulently pro
The action is in the nature of a suit in equity to remove a cloud upon title, and not one under the statute to determine adverse claims, and the question whether, upon the allegations of the complaint, the action can be maintained, must be determined upon the principles applicable to such suits. The certificate of redemption to remove which, as a cloud upon the title, is the principal object of the action, is claimed to have been invalid because it did not state, as required by statute, upon what claims such redemption was made, nor the amount claimed to be due upon the lien under which the redemption was in fact attempted to be made. These defects, however, are apparent on the face of the certificate itself, and there is no other instrument evidencing the attempted redemption. For that reason, unless we are to now depart from the rule which has hitherto prevailed in this state and generally in the American courts, such an instrument will be deemed not to be a cloud upon the title, and, in general, such an action as this will not lie to remove it. Weller v. City of St. Paul, 5 Minn. 70, (95;) Scribner v. Allen, 12 Minn. 85, (148;) Conkey v. Dike, 17 Minn. 434, (457, 463;) Baldwin v. Canfield, 26 Minn. 43, (1 N. W. Rep. 261;) Gilman v. Van Brunt, 29 Minn. 271, (13 N W. Rep. 125.) It is, perhaps, questionable whether the better reason is not in favor of a different or modified rule; but however this may be, the law is so well established by the great weight of au
It is further urged that the action is maintainable to set aside the judgment as a cloud upon the plaintiff’s title. But the judgment, being junior to the recording of the mortgage, was subject to it. The property having been sold upon the mortgage foreclosure, the judgment was available to affect this land only as it gave the judgment creditor a right to redeem from the foreclosure sale. The time within which that could be done had passed when this action was commenced; and, unless it appears that a redemption effectual to cloud the title had been made, there could be no reason for this plaintiff to ask relief with respect to the judgment. Of course, if the redemption certificate was void for reasons appearing upon its face, the fact that it might also be avoided for other defects, which could be shown only by extraneous evidence, would not affect the result of the prevailing rule of equity to which we have referred.
It is further urged that a remedy in the nature of an injunction to prevent a cloud upon the title may be had under the complaint. An action for such a purpose may be entertained; but it must appear that proceedings are contemplated or threatened on the part of the defendant which will cloud the title. It is not enough that the complaint show that such a course may be pursued. Sanders v. Village of Yonkers, 63 N. Y. 489. This complaint was probably not framed with a view to such relief, and it is wanting in averments showing a necessity for the preventive interference of the court. There is perhaps reason to infer from what has been done that further steps may be taken to cloud the title, but the complaint contains no averments upon the subject.
Order reversed.
Dissenting Opinion
(dissenting.) I am unable to concur in the doctrine that an action to remove a cloud from title will not lie merely be
Waiving this question, however, I still think that the complaint, although not a model of good pleading, states a cause of action. It seems to me that the opinion of the court proceeds upon the erroneous assumption that this is an action merely to set aside this certificate •of redemption. On the contrary, I construe it as one to set aside and have declared void an illegal redemption, which has been in fact made, and under which defendants claim title. A certificate is merely evidence of a redemption, and if the one already issued is defective in form, there is nothing to prevent the issuing of another. The real cloud on plaintiff’s title, and the one which he asks to have set aside,
In view of all the facts alleged, and particularly that the defendant-Finnegan has made a redemption by paying his money to the sheriff,, and has taken the certificate, and that he and his grantees are now claiming title under such redemption, it seems to me rather strained to say that the complaint is insufficient because it does not state in so' many words that defendants will continue to assert title, and that, if this certificate be held void, they will procure another one, and therefore they may abandon their claim.