28 Minn. 75 | Minn. | 1881
This is an action in ejectment. The defendant in her answer denies the title of plaintiff, and alleges title in herself. Both parties claim title under one Fegebank, — the plaintiff, under a mortgage upon the premises executed by Fegebank in 1863, and afterwards duly foreclosed, and the premises sold thereunder April 25, 1867, to plaintiff’s grantor; the defendant, under a conveyance by Fegebank, subsequent to the mortgage. On the 7th of April, 1868,
The only question, therefore, in the case is, whether a mere tender to the sheriff, and a refusal by him to receive the amount necessary to redeem, operates as a discharge of the lien of the holder of the certificate of sale ? We are of opinion that this question must be answered in the negative. In such case, the sheriff is not his agent, but merely the officer of the law with whom the redemptioner, if he sees fit, may deposit the money instead of paying it to the party to whom it belongs. No act of his can prejudice the rights of the holder of the certificate of sale. Horton v. Maffitt, 14 Minn. 289; Davis v. Seymour, 16 Minn. 210; Tinkcom v. Lewis, 21 Minn. 132; Gilchrist v. Comfort, 34 N. Y. 235. The only office or effect of such tender and refusal is that it will preserve and protect the right of the redemptioner to have the redemption perfected, if such right be seasonably asserted. The sheriff being the officer of the law, and not the agent of either party, his refusal to receive the money, and to execute a certificate of redemption, does not destroy the redemptioner’s right, if seasonably asserted, to have the redemption perfected and properly evidenced; neither does it impair the right of the holder of the certificate to the redemption money, or, failing that, to acquire absolute title to the premises.
The defendant, upon the refusal of the sheriff, might have applied directly to the holder of the certificate of sale; or, if that was impracticable, have seasonably brought suit against him, setting up the fact of the tender and refusal, and bringing the money into court, and asking that a redemption be decreed. Or she might have brought the money into court, and instituted appropriate proceedings against the sheriff to compel him to perform his official duty by executing a certificate of redemption. But she has done none of these things; nor does
Judgment reversed, and cause remanded, with direction to the court below to enter judgment for plaintiff in accordance with this opinion.