58 Minn. 291 | Minn. | 1894
The defendant Finnegan held a judgment against the owner of the land in question, and sold it on execution issued on said judgment. The time to redeem from the sale expired July 5, 1893, but no redemption was made by the owner. Before that time
The plaintiff duly filed his notice of intention to redeem in the clerk’s office, and, disregarding Finnegan’s attempts to redeem from himself, attempted to redeem from Finnegan’s execution sale without paying his two subsequent judgments, by tendering to the sheriff merely the amount bid at that sale, and interest. The sheriff refused to accept this, apparently on the ground that Finnegan had already redeemed from that sale under his subsequent judgments, and that plaintiff must pay the amount of these judgments, in addition to the amount so tendered, before he was entitled to redeem. Thereupon, plaintiff brought this action against both the sheriff and Finnegan to compel redemption, and obtained judgment, from which the defendant Finnegan appeals.
It is conceded by appellant that the attempt to redeem was ineffectual, because of his failure to file his notice of intention to redeem in the proper office.
1. It is urged by appellant that the tender to the sheriff was ineffectual because not made in legal tender. The deputy sheriff to whom the tender was made testified that, according to his recollection, a part of the money tendered was national bank notes and silver certificates. Plaintiff’s agent, who made the tender, testified that the money was currency which he had just received from the bank.
The deputy sheriff made no objection to this currency on the ground that it was not legal tender, and in our opinion, by his failure to do so, the objection is waived, both as to him and appellant. The tender was made in current funds, that pass without question, in all channels of trade and business. The objection is wholly technical, and if not specially made, it is waived. In Nopson v. Horton, 20 Minn. 268 (Gil. 239), it was held that in such a case, by ac
2. The only evidence produced by plaintiff to the sheriff of his right to redeem was the sheriff’s certificate of the execution sale under his own judgment, on which the time to redeem had not yet expired.
It is urged by the appellant that he should also have produced certified copies of the judgment, the docket thereof, and the execution. 1878, G-. S. ch. 66, § 825, provides that the person making the redemption shall produce to the officer — “First. A certified copy of the docket of the judgment, or deed of conveyance, or mortgage, or of the record or files evidencing any other lien, under which he claims the right to redeem, certified by the officer in whose custody such docket, record or file shall be.” Section 321 provides what facts a sheriff’s certificate of execution sale shall state, and that it shall be prima facie evidence of the facts therein stated. The sheriff’s certificate on plaintiff’s execution sale recites the entry and docketing of the judgment, and the issuance of execution. Although plaintiff’s claim was as yet only a lien, and he derived this lien through the judgment, the judgment itself was not his lien, but his lien had been transferred to the sheriff’s certificate. Under the statute the sheriff’s certificate not only proves itself, but it also proves the judgment and other proceed-, ings recited in it, as aforesaid. On making a redemption the original may be so produced, as well as a certified copy. Tinkcom v. Lewis, 21 Minn. 132.
We are of the opinion that it was not necessary to produce the judgment, or docket thereof, or execution. The certificate, taken alone, evidenced the lien.
3. Appellant urges that under 187S, G-. S. ch. 66, § 324 the plaintiff could not redeem without paying the amount bid on appellant’s execution sale, and interest, and also the amount of appellant’s two subsequent judgments; that conceding that appellant has failed to put himself in the line of redemptioners, by filing notice to redeem in the proper office, the statute does not require him to do so, but that said section 324 requires the plaintiff, on redeeming, besides pay
Such idle ceremony is not warranted either by the letter or the spirit of the statute. His acts must be such as to commit him unequivocally to such constructive redemption, so that the number and priority of his subsequent liens to be thus applied, and the number of five-day periods which they will cover after the year has expired, can be ascertained by subsequent creditors, and so that the debtor may know that the holder of the sheriff’s certificate has thus applied his subsequent liens, whether other subsequent creditors redeem or not. The appellant has not thus put himself in the line of redemptioners. He has failed to file his notice in the proper office.
4. The complaint alleges the tender by plaintiff to the sheriff, and that plaintiff has ever since been ready and willing to redeem, and tenders the amount in the complaint. The court finds that the tender was made, and that plaintiff has kept the tender good, and there is sufficient evidence to support the finding. The order for judgment provides that upon payment of the amount so tendered to Finnegan, or into court for him, plaintiff is entitled to judgment, etc. The judg
5. It is argued that the complaint does not charge that appellant caused the sheriff to refuse the tender, or refused to permit the redemption which plaintiff attempted to make. If the complaint is defective in this respect, — which we do not decide, — the answer cures it by showing that appellant, as well as the sheriff, denies plaintiff’s right to redeem.
The judgment appealed from should be affirmed. So ordered.
(Opinion published 59 N. W. 1020.)