208 N.W. 163 | S.D. | 1926
This is a mandamus proceeding to compel the defendant sheriff to issue a sheriff’s deed upon foreclosure by advertisement to the plaintiff, holder of the certificate of sale. The facts upon which this proceeding is based are as follows:
That W. H. Walters was the legal holder of the land in question at the time of the trial; that plaintiff is a sister of said W. H. Walters; that Dennis & Dennis held a sheriff’s certificate of sale tf the land on foreclosure by advertisement September 15, 1923; that the Farmers’ & Merchants’ Bank of Iroquois, this state, was the. owner and holder of a subsequent mortgage on said premises, and as such was a redemptioner; that on September 15, 1923, the premises were sold by the sheriff by foreclosure sale to Dennis & Dennis for $2,571.18; that defendant sheriff executed a sheriff’s sale certificate, which was filed in the office of the register ofi deeds; that the payment so made was in the form1 of a demand certificate of deposit issued by the Midland State Bank of Brookings, this state, to one Vance, examiner of said Farmers’ & Merchants’ Bank of Iroquois; that said Vance exhibited to sheriff its note, mortgage, and assignment thereof, with the certificate of
Plaintiff claims that a certificate of deposit is- only a promise to pay, but recent decisions have treated a certificate of deposit as so much cash. A duplicate notice of said notice of redemption was filed for record in the office of the register of deeds of Brookings county on October 14, 1924. The record discloses that the certificate of sale was legally assigned by Dennis & Dennis to the plaintiff, and there is no evidence to show that said Walters was agent for plaintiff. The sole basis of plaintiff’s contention in the case is that the Farmers’ & Merchants’ Bank of Iroquois paid the redemption .-money to the defendant in the form of a certificate of deposit, instead of in cash. Nlo question is raised concerning the regularity of the proceedings in redemption, or that the bank was not a redemptioner, or that the redempron was not made in due time. In an opinion written by Mr. Justice Spalding in 1908, the Supreme Court of North Dak
“v\re find some very early cases to- support this doctrine, but the decisions in such cases were made when a very small part of the business of the country was conducted by means of checks and drafts. In these «days, when the commercial transactions of the country are almost universally carried on by means of bank checks arid drafts, we feel that a business custom so universal should be recognized, and that payment by check issued by a reputable and solvent bank should constitute payment, unless seasonable objection is made to its receipt, and the reason specifically given, so as to give the person tendering the check an opportunity to procure and tender legal tender currency, if available. This is in accordance with the weight of modern authority.” North Dakota Horse & Cattle Co. v. Serumgard, 117 N. W. 453, 17 N. D. 466, 29 L. R. A. (N. S.) 508, 138 Am. St. Rep. 717.
Section 1259, R. C. 1919, provides:
“An agent has authority to do everything necessary, or proper and usual in the ordinary course of business, for effecting the purpose of his agency.”
Section 774, R. C. 1919, provides:
“All objections to the mode of an offer of performance, which the creditor has an opportunity to state at the time to the person making the offer, and which could be then obviated by him, are waived by the creditor, if not then stated.”
A certificate of deposit has the entire responsibility of the bank behind it. 3 R. C. L. 573, 574. The defendant sheriff, as the legal and responsible agent for the holder of the certificate of sale, was justified in accepting the certificate of deposit in redemption, and the same was the equivalent of money. Such acceptance, without objection to the form of payment, waived all objection which might have been obviated by the redemptioner, if objection had been made, and such waiver is binding' upon the sheriff! and his principal, the holder of the certificate of sale. When the sheriff cashed the certificate of deposit, three days after redemption, it related back to the date of its delivery to the sheriff, and therefore was equivalent to the actual payment of money to the sheriff on that date.
