21 Minn. 319 | Minn. | 1875
Section 1, cli. 87, Laws 1860, reads as follows : ‘ ‘ That any real estate hereafter to be sold • * * * upon the foreclosure by advertisement, or otherwise, of a mortgage, * * * shall be held by the party purchasing the same subject to the right of the * * mortgagor, or any one claiming through or under him, * * * to redeem the same, at any time within three years from the day of such sale * * *' . Other creditors of the * * mortgagor may, at any time within three years after such sale, redeem such premises, upon the same terms as the * * mortgagor * * * . Provided that the original debtor, his heirs or assigns, shall have the period of three years for the redemption upon each and every such sale, foreclosure, * * * advance or redemption, after the same shall have been made, and notice thereof filed in the office of the register of deeds in the county where such real estate shall be situated.”
In our opinion, this section, read as a whole, authorizes a mortgagor, or a person claiming through or under him as an assignee, to redeem from a foreclosure sale, not only within three years from the day of sale, but within three years after notice thereof filed in the office of the register of deeds. While, as must bo admitted, the section is in-artificially drawn, no other construction would give any reasonable effect to the words “ sale, foreclosure,” in the proviso. The punctuation by which the proviso would appear to be separated from the first sentence of the section, is of little or no importance, when it is considered how and by whom it is in fact done. See Pancost v. Ruffin, 1 Ohio, 386. This disposes of what we understand to be the principal question in the case.
2. The mortgage involved in this case was executed by Holtz as mortgagor to defendant as mortgagee. On July 8, 1868, Holtz, (then owner of the mortgaged premises, subject to defendant’s rights,) in order to effect a redemption from the sale, tendered to the then sheriff the amount required for that purpose. The sheriff was a proper person
3. The complaint alleges, though without giving the date of the transfer, that Holtz conveyed the mortgaged premises by warranty deed to Hillman, and that Hillman convoyed the same to the plaintiff, who ‘ ‘ has ever since been and still is the lawful owner in fee simple of the same.” This is certainly an allegation of title in plaintiff. If it be indefinite, because the blanks appearing in the complaint are not filled with the proper dates, or for any other reason, the statute points out a remedy, of which defendant has not seen fit to avail himself.
4. The complaint states that Holtz, Hillman and the 2>lamtiff ££ have always since the making of the tender aforesaid, been ready and willing to pay said sum of money, so tendered as aforesaid, to the said defendant, and said jjlaintiff still is ready and willing so to do, and now brings the same into court for that 2iur2iose, and hereby offers to pay the same.”
If it be necessary to keep the tender good, a question which we need not determine, we agree with the court below that the foregoing allegations are sufficient in this behalf. Wilder v. Seelye, 8 Barb. 408.
Order overruling demurrer affirmed.