27 Minn. 175 | Minn. | 1880
In this ease tbe mortgagee, tbe plaintiff, bad proceeded to foreclose under tbe power, to collect an instalment of interest due, by sale of tbe real estate mortgaged. Before tbe time to redeem from such sale expired, tbe mortgagor redeemed. This action was subsequently brought to foreclose tbe mortgage against tbe same property for tbe remainder of tbe debt. The complaint set forth what bad been done in respect to foreclosing for tbe instalment. On demurrer to tbe complaint it was claimed that tbe lien of tbe mortgage was wholly exhausted by those proceedings. Tbe court below, perhaps misled by tbe language of this court in Fowler v. Johnson, 26 Minn. 338, held this to be tbe case and sustained the demurrer. We allowed a reargument of that question in this case, and also in Fowler y. Johnson. We see no reason to doubt tbe correctness of that decision. In that case we decided that a foreclosure sale, eyen for an instalment, exhausted tbe lien of tbe mortgage on tbe tract sold; that there can be but one sale of tbe same tract under tbe mortgage, though it be payable in instalments. We did not
It has always been held by this court that, under the statute, a foreclosure is not complete, so as to operate as a sale, until the time allowed by statute for redemption has expired; that till then the title does not pass. Daniels v. Smith, 4 Minn. 117 (172;) Donnelly v. Simonton, 7 Minn. 110 (167;) Horton v. Maffitt, 14 Minn. 289.
The statute has always been that a redemption by the owner, his heirs or assigns, “annuls the sale.” In Daniels v. Smith, a mortgage on one tract, payable in three instalments, was foreclosed under the power for the first instalment, and. the owner redeemed. The second instalment was satisfied without recourse to the mortgage, and the mortgagee after-wards foreclosed under the power for the third instalment. It, was claimed that the first foreclosure proceedings exhausted the lien. The court held that they did not, and said: “The effect of this redemption by Daniels (the owner) was simply to render null and void the sale and the certificate thereof made by the sheriff, and to cancel the mortgage and its lien upon the land for the first instalment. The effect is exactly what it would have been had Daniels paid the first note when it fell due, without any foreclosure and sale.”
Warren v. Fish, 7 Minn. 432, was the case of an execution sale and redemption by the owner. The statute as to the effect of redemption by the owner from execution sale, is the •same as in regard to such redemption from mortgage sale— it “annuls the sale.” Of redemption by the owner, the court said: “It terminated the sale, and restored him to his estate exactly as it was before the sale took place, except that the judgment upon which the sale was made was satisfied. All other liens, prior and subsequent, remained unimpaired.”
In Rutherford v. Newman, 8 Minn. 28, (47,) also a case of execution sale and redemption by the owner, the court repeated what it had said in Warren v. Fish, and added: “In other words, a redemption by the judgment debtor, or his
Order reversed.
