No. 8500 | Minn. | Dec 30, 1893
In this action to determine an adverse claim of defendant, the plaintiff alleges possession and title. The defendant, in addition to a general denial, sets up title in himself, and asks an affirmative judgment. The answer thereby presents an independent claim for adjudication. This is a waiver of strict proof of
The issues herein were framed in 1888, hut upon the trial the defendant, over the objections of the plaintiff, offered in evidence a quitclaim deed of the premises from the plaintiff to one Hanson, dated in 1891. To entitle this evidence to be received, a supplemental answer should have been filed. The deed not having been admitted in evidence by consent, it was not within the issues, and hence was not the proper subject of a finding of the jury. Harrington v. St. Paul & Sioux City R. Co., 17 Minn. 219, (Gil. 188.)
The defendant claims title under the grantee of one Snow, who purchased the land on the foreclosure of a mortgage held by him. Plaintiff claims under redemptions from the foreclosure sale made by judgment creditors of the mortgagor, one Eidem. These redemptions were considered in our decision upon the former appeal herein, 50 Minn. 310" court="Minn." date_filed="1892-06-27" href="https://app.midpage.ai/document/todd-v-johnson-7967515?utm_source=webapp" opinion_id="7967515">50 Minn. 310, (52 N. W. 865,) to which we refer. The first of these redemptions was made in behalf of one Mackay, the senior judgment creditor, within five days after the expiration of the year allowed the mortgagor to redeem. The redemption was made in his behalf by his agent, by paying the proper amount to the sheriff; and a certificate of redemption, sufficient in form, was issued to him on the day of the redemption, February 5, 1880, and duly recorded on the 9th day of February, 1880. And within five days, viz. on February 7,1880, P. P. Mast & Co., a corporation, as junior judgment creditor, paid to the sheriff, as upon a ■ redemption of the same premises, the amount paid by Mackay, together with the amount of his judgment, and thereupon received the proper sheriff’s certificate of redemption.
Under the decision referred to, these certificates must be deemed sufficient in form; and the defects,in Mackay’s notice of intention to redeem, and the omission to furnish the sheriff the proof required by 1878 G. S. ch. 81, § 14, were also there held not to be fatal to the redemption, as between the redemptioner and Snow, the person redeemed from, who is' the common source of title of these parties. A new trial was ordered because the plaintiff had failed to prove the liens upon which the redemptions were attempted to be made. On the second trial, plaintiff produced a
Several objections are again raised by defendant to the validity of the redemptions: (1) As respects that in behalf of Mackay, it is insisted that it was made by the attorney who recovered the judgment, without adequate authority. (2) It is also urged that neither he nor Snow, the mortgagee, knew of the defects or irregularities in the proceedings to redeem, and therefore could not have waived them. (3) Another objection not raised on the former appeal is this: Eidem, the mortgagor, entered the land as a homestead, and the patent issued to him thereon is dated January 15, 1875. Mackay’s judgment against Eidem was recovered in 1876, but upon a promissory note made in 1874, and hence antedating the patent. It is claimed that by virtue of th§ provisions of the United States statute (see Russell v. Lowth, 21 Minn. 168) the judgment never became a lien on the land, and hence the redemption upon the Mackay judgment was a nullity. It is proper to state here, however, that the records of Meeker county — where this land lies, and where the redemption was made — do not disclose this defect. The transcript and docket there do not show when the debt for which the judgment was given accrued. It was an apparent lien on the land, and there is no evidence of any bad faith on the part of any of the parties. They evidently overlooked, or did not inquire into, the defect referred to.
.The certificate of redemption issued to Mackay, already referred to, recited the fact of the filing of the notice of intention to redeem, the mortgage foreclosure, the rendition of the judgment in 1876, and the transcript and docketing in Meeker county in October, 1878, and acknowledges the .receipt of the amount required to redeem the premises from his foreclosure sale, and is apparently valid on its face, as already held, and the redemption money was duly paid over to the mortgagee, purchaser at the sale; and thereupon P. P. Mast & Co. made the second redemption on the 7th day of February, 1880, and received the sheriff’s certificate of that date, recorded also the same day, as above stated, and afterwards conveyed the premises to the grantor of the plaintiff. (4) Objection is also made to the
As respects the redemption of P. P. Mast & Co., it is very clear that, upon the face of the record, it was a valid redemption. Its judgments were liens subject to the mortgage. Its notice of intention to redeem was seasonably- filed, and was sufficient in form. Within five days after the expiration of the year, Mackay’s agent, as already stated, caused a redemption to be made upon his judgment, which was the senior judgment, and, upon the records in Meeker county, was an apparent lien; and a certificate of redemption was duly issued to Mackay, and the redemption money accepted and retained by Snow. That redemption has never been set aside, nor has it been questioned by the parties thereto, nor, in so far as appears, by any one, until this action was brought, eight years later. There having been a redemption in fact, apparently valid, within the first five days, by a prior judgment creditor, P. P. Mast & Co. was entitled to the second five days in which to redeem, even if the first redemption had subsequently been declared void.
Its payment of the amount due on the mortgage, as well as of the prior judgment, which was received by the attorneys of Mackay for him, worked a valid redemption of the property, in any event. We are unable to see why the title did not pass to P. P. Mast & Co. upon Its redemption. The record of the prior judgment, and a redemption rander the same within the five days, gave it the additional time provided for by the statute. It will not do to hold that the second iredemptioner is bound to contest the right of a prior redemptioner, who has an apparently valid lien, and has actually made a redemption. The statute does not contemplate any such thing. Any other
The purchaser, Snow, knew of the Mackay redemption, and accepted and retained the amount due him as redemption money. As to Snow and P. P. Mast & Co., that redemption was an accomplished fact. Besides, it is the policy of the law to have the property of the debtor applied, as far as it will go, in satisfaction of the debts of the mortgagor. Sprague v. Martin, 29 Minn. 231, (13 N.W. 34" court="Minn." date_filed="1882-06-16" href="https://app.midpage.ai/document/sprague-v-martin-7964059?utm_source=webapp" opinion_id="7964059">13 N. W. 34.) Parties desiring to contest redemptions should stand upon their strict legal rights, and.act promptly and seasonably; otherwise, subsequent redemptioners might lose their right of redemption. Both Snow and Mackay collected their, debts, and are in no position to complain of the subsequent redemption.
Snow was put upon inquiry by the fact of redemption, and he might have inquired into the facts, if he cared to do so; and it is certainly now too late, upon the facts in this case, for him or his assignees to question the validity of P. P. Mast & Co.’s redemption.
Mackay did not specially direct the redemption. He testifies that he directed his attorney to do all he could to collect his debt against Eidem. It is not necessary to decide the extent or limitations of the authority of his attorney. It is enough that the matter was so managed that his debt was collected, and he has received it, and so he is in no position to question the redemption. He either authorized it or he did not. If he did, it is good as to him; and, if he did not, he has no interest whatever in the question, since he is subjected to no liability. It is unnecessary to consider other questions raised.
Judgment affirmed.
(Opinion published 57 N.W. 320" court="Minn." date_filed="1893-12-30" href="https://app.midpage.ai/document/todd-v-johnson-7968208?utm_source=webapp" opinion_id="7968208">57 N. W. Rep. 320.)