50 Minn. 310 | Minn. | 1892
This is an action to determine adverse claims to real estate, each party alleging and relying on a strictly legal title. Each claims title through the foreclosure of a mortgage held by one Snow, who. was the purchaser at the foreclosure sale. Plaintiff claims through alleged redemptions by subsequent judgment lien creditors ; defendant through a conveyance by Snow, made several months
The several judgments are claimed to have been rendered by justices of the peace, and transcripts filed, and the, judgments docketed in the office of the clerk of the district court for the county. At the trial, the only evidence of the judgments offered were certified copies of the docketing. This was not sufficient. A judgment must be proved by the judgment record, or an authentication of it. ' The docketing, which is no part of the judgment, but which is an act done after its entry, for the purpose, under the statute, of making it a lien on real estate, does not prove it. The case of Herrick v. Am-merman, 32 Minn. 544, (21 N. W. Rep. 836,) relied on by respondent, does not decide that the docket alone is the judgment, but that under 1878 G. S. ch. 65, §§ 72, 73, the filed transcript with the docketing, makes the judgment of the justice a judgment of the district court, and it may be proved by copies of the transcript and docket, authenticated by the clerk of that court.
It is objected to the certificate of redemption issued to Mackay that it does not state, as the statute requires, the amount claimed to be due on the lien upon which the redemption was made. It would seem hard that such a defect should defeat the right of a subsequent redemptioner, especially that it should defeat it in favor of the purchaser, the statement not being required for his information, and if there be anything due on the lien, so that the right to redeem exists, he being no way interested in the amount of it. Whether a sub
The defect in Mackay’s notice of intention to redeem presents a more serious question. The appellant urges- that, his notice being ineffectual, he was not a redemptioner under the statute; consequently P. P. Mast & Co. was the first redemptioner, and ought to have made its redemption within five days after the year expired; and, not having done so, its right to redeem was gone. The statute, (1878 G. S. ch. 81, § 16,) after giving subsequent lien creditors the right to redeem, proceeds: “Provided, that no creditor shall be entitled to redeem,- unless within the year allowed for redemption he files notice of his intention to redeem in the office of the register of deeds where the mortgage is recorded.”
As we have seen, Mackay’s notice was ineffectual, but the trial court found that the money paid by him to make redemption was in February, 1880, received, and has ever since been retained, by Snow, the purchaser; and concludes, in effect, that he thereby waived his right to object to the want of a proper notice.
This raises the question, can a purchaser waive, by acts in pais', the filing of a sufficient notice, such as is required by statute, on the part of a lien creditor who has attempted to redeem from him? That he may do it by deed as by executing to such creditor the usual certificate of redemption, there can be no question. Of course he cannot waive it so as to affect any one but himself. In order to the passing of the legal title by means of the redemption (and the plaintiff relies not on any equitable rights he may have through the attempted redemption and waiver, but solely on the legal title) some things are undoubtedly indispensable.' For instance, a certificate of redemption, in substance such as the statute directs, is essential to the passing of the legal title, although, perhaps, the redemptioner may acquire equitable rights without it. Smith v. Buse, 35 Minn. 234, (28 N. W. Rep. 220.) And undoubtedly the person seeking to
As tbe plaintiff did not prove the liens on which the redemptions were attempted, there must be a new trial.
Judgment reversed.