Phelan v. Morris

142 N.W. 470 | S.D. | 1913

McCOY, J.

Real estate mortgage foreclosure sale was made May 27, 1911, under a mortgage given by one Phelan and wife, as mortgagors, to one Carlisle, as mortgagee, and at which sale one Smith became purchaser. No redemption of any.kind or character was made, or attempted to be made, within one year after the making of such sale. On the 1st day of May, 1912, said purchaser caused a notice to be given to said mortgagors and to plaintiff that the day of redemption would expire and a deed would issue, unless said premises were redeemed according to law, as provided by chapter 78, Raws of 1909. On the 24th day of June, 1912, 28 days after the expiration of the one year for redemption, plaintiff, claiming to be a part owner of' the mortgaged premises, attempted to redeem from such sale by serving notice of redemption upon the sheriff, and paid to said sheriff the amount of money necessary to make such redemption, but said sheriff refused to issue a certificate of redemption to plaintiff. Plaintiff thereupon instituted this proceeding in mandamus to compel the issuance of said redemption certificate, and set up the foregoing facts in his petition therefor. To this petition defendant demurred, on the ground, among others, that it failed to state facts sufficient to justify the issuance of a peremptory writ. It is the contention of respondent that the effect of the provisions of chapter 78, Raws of 1909, is to extend and enlarge the year of redemption whenever the 60 days’ notice provided for is given within less than 60 days before the expiration of one year from the date of sale; that any one entitled to redeem would have the whole of the 60 days’ notice period in which to make redemption, even though it extended beyond the one year from date of sale. We .are of the opinion that the contention is not tenable. As we view the provisions thereof, said chapter 78 in no manner whatsoever undertakes to, or does in fact, affect the law in relation to the -time in which redemption from real estate mortgage sales may be made; that its provisions relate solely to other subjects than the time for redemption. The provisions of this chapter relate only to the issuance of a sheriff’s deed on foreclosure sale, and a notice to be given preceding the issuance of such deed. The issuance of a sheriff’s deed is one thing, and the expiration of the time for redemption is another. The specific provision of chapter 78 under consideration is “that at least sixty days prior to the issuance of such deed a notice in writing be served, * * * stating * * * that the right of redemption will expire and a deed for said land be made unless redeemed within the time provided by law.” There is nothing in this language which could, by any reasonable possibility, be construed into an intention to extend or enlarge the time for redemption under the law as it theretofore existed. “Unless redeemed within the time provided by lawi’ clearly relates to the old or prior law then in force. The only notice authorized to be given by this chapter is .that, unless redemption be made according to law, a sheriff’s deed will be issued at the expiration of 60 days. A sheriff’s deed on foreclosure sale is always issued after the -time for redemption has expired, never before. Such sheriff’s deed is just as valid if issued 60 days after the expiration of the time for redemption as if issued one day thereafter. If this chapter contained- the provision, or required the notice to contain a statement, that if redemption was not made within 60 days from the service of such notice, then a deed would be issued, then there might be some -basis for such a contention, but no such provision appears in this statute. Whenever the written notice provided for is given within or less than 60 days of the expiration of the one year for redemption, it will in no manner lengthen or enlarge the time for redemption, but it would preclude the purchaser from obtaining a sheriff’s deed before the expiration of the 60 days.

The view we have taken of this case renders it unnecessary to pass upon any of the other questions discussed in the briefs.

The order appealed from is reversed, with direction to the lower court to enter an order sustaining said -demurrer.