27 Minn. 18 | Minn. | 1880
Action to recover possession of certain real estate, both parties claiming title under a sale upon a foreclosure by advertisement of a mortgage given in April, 1867, by one Mary A. Haus and her husband. The sale was made by the sheriff, October 17, 1876, to one Richmond, who became the purchaser, and received the usual certificate of sale and purchase. It is admitted by the pleadings that no redemption was had within the twelve months next after the sale, by any of the parties who were entitled to redeem under the provisions of Gen. St. 1866, c. 81, § 13. Plaintiff’s claim is that no redemption whatever has ever been made under either section 13 or 16 of said chapter, though the time allowed therefor has expired, whereby the rights acquired by the purchaser at said sale, and evidenced by the certificate, have ripened into an absolute title, which is now held by plaintiff. On the part of the defence, the claim is that the property was duly redeemed from such sale, within the five days allowed by law, under said section 16, by one Fink, the defendant’s lessor, as a senior creditor, who had a lien upon an undivided estate or interest in the premises, by yirtue of a judgment rendered and docketed April 1, 1875, against one Yitt, who had acquired a title to such undivided interest, derived from the mortgagor subsequent to the mortgage. Said judgment was rendered in the district court of Ramsey county, in favor of Elias S. Higgins and Nathaniel D. Higgins, partners as E. S. Higgins & Co., plaintiffs in the action, and was assigned, as defendant alleges, by them to one Sanborn, and by the latter to said Fink, who claims to have been the owner thereof at the time of his alleged redemption.
The cause was tried by the court without a jury, and the issues presented for trial, it will be seen, involved the right of Fink to redeem under the statute, (Gen. St. c. 81, § 16,)
The suggestion that, the lien of the judgment upon which Fink’s redemption was founded being only upon an undivided interest in the property, it therefore gave no right of redemption, is met by the statute, which enacts in express terms that “if no such redemptions made,” (i. «., none under section 13,) “the senior creditor having a lien, legal or equitable, on the real estate, or some part thereof, subsequent to the mortgage, may redeem,” etc. An undivided interest in real estate is “some part” of it, within the meaning of this statute, liberally construed, as it must be under the decisions of this court. Williams v. Lash, 8 Minn. 441 (496;) Tinkcom v. Lewis, 21 Minn. 132.
Upon the trial, defendant was permitted, against plaintiff’s
■The objection that the judgment against Yitt was satisfied prior to the redemption, by reason of a levy, on execution upon sufficient personal property to satisfy the same, is fully met by the finding of the court that there was actually due and unpaid thereon the sum of $694.78; and the evidence contained in the record before us sustains the finding, without reference to the presumption in its favor which arises from the fact that the settled case does not purport to disclose all the evidence that was given on the trial. The evidence included in the ease justifies the conclusion that the personal property so levied on had already been transferred by the judgment debtor
Fink’s right to redeem is further assailed, on the ground that the written assignment from Sanborn to him was insufficient to pass the title to the judgment, because of the erroneous-reference therein to it as a judgment entered and docketed the 18th day of April, 1875, instead of April 1st, as was-the fact. That this was merely a clerical error of description, incapable of misleading any one under the circumstances, manifestly appears upon the face of the assignment-itself, and also from the other facts proved beyond question and undisputed. In such assignment the action is entitled the same as in the assignment from the plaintiffs therein to Sanborn. The latter is -described in it as the assignee of the above-named plaintiffs, and of the judgment in said entitled action, and professes to transfer the same to Fink. Sanborn
The objection that the notice of intention to redeem, being only recorded and indexed in the office of the register- of deeds, was not, therefore, filed in that office, within the meaning of the statute, is without merit. The former includes the latter, and answers all the purposes intended by the statute.
It remains to consider whether Fink made the redemption from the proper officer, and substantially complied with the requirements of Gen. St. c. 81, § 14, in making it. As to the first point, the redemption was made from the deputy sheriff, at the time in charge of the office of the .sheriff, the latter being absent. This was right, as was settled in Williams v. Lash, 8 Minn. 441 (496.) In respect to the matter of a redemption from a sheriff who has made a sale upon a mortgage foreclosure, the law treats the sheriff as an officer, and not as a person acting in his individual capacity.
Upon making the redemption in this instance, the officer from whom it was made duly made, acknowledged, and delivered to Fink a certificate of redemption, in strict conformity with the provisions of Gen. St. c. 81, § 15, and it was recorded
The findings of the court, therefore, upon this branch of the ease must be sustained, though- the additional proofs allowed to be made upon the trial, against the objections of the plaintiff, in reference to what was done by Fink in the way of compliance with the provisions of said section 14, are wholly excluded and stricken from the case. As the reception of such proofs did not prejudice the plaintiff, the rulings thereon, whether right or wrong, are of no consequence as affecting the question before us of granting or refusing to grant a new trial.
•Order affirmed.