Wagner v. Abrahams

171 N.W. 202 | S.D. | 1919

SMITH, P. J.

This case is before us .on. rehearing. The original decision will be found in 168 N. W. 762.

Rehearing was granted upon two questions:

First. Is the certificate of the sheriff, or the certificate of the purchaser at the foreclosure sale, or his assignee, evidencing the payment of all taxes due on the land, and of all interest due under the provisions of the mortgage, and one year’s interest in advance, conclusive of the payment of the amount required by section 646 Code of Civil Procedure, to entitle redemptioner to an extension of the period of redemption?

Second. If such certificate is conclusive of such extension, then -what amount must ’be finally paid to redeem?

[1] For the reasons stated in our former opinion, we are satisfied the Legislature intended exactly what it said in language so plain that it needs no interpretation: “Such certificate is conclusive of such payment,” namely, • the payment required by the statute. The extention of the period of redemption is therefore conclusively established in this case. But it is equally clear that the amount necessary to redeem is in no manner controlled by the provision, under which an extension of the period of redemption may be obtained. For the purpose of determining the amount necessary to redeem, the certificate of the sheriff is not conclusive that the full amount of interest covering the periods specified in section 646, supra, has been paid. .

[2] The redemptioner is therefore entitled to a credit o.n the amount necessary to redeem, of the amount actually paid to obtain the extension. The amount necessary to redeem is the amount for which the property was sold at the foreclosure sale, with interest at 7 per cent., and the amount of any assessment of taxes which the purchaser may have paid after the purchase, with interest at the same rate. Code Civ. Proc.. §§ 376, 646.

This seems clear, when it is remembered that the amount for which the property sells at a foreclosure sale may be less than the amount 'due on the mortgage. It is unnecessary in this case to determine the amount due under the provisions of the mortgage, as the only question before us is as to the amount- necessary to redeem.

We therefore affirm our former decision.