Wilson v. Conklin

| Iowa | Jul 2, 1867

Weight, J".

1. Redemption: by creditor before end of six months. Appellees first insist, under their demurrer, that plaintiff, if a judgment creditor as the holder of Daniels & Co. judgment on the 14th of May, 1806, could not then make redemption, £Qr t]lat this was witliin sjx months from the date of the sale, during which time the right of redemption is exclusively in the judgment debtor. In the same connection it is insisted that plaintiff was not, on said 14th of May, a judgment creditor or lien holder, for the reason that the judgment of Daniels & Co. was not assigned to him until in July afterward. And, third, it is claimed that there was no valid redemption, because there was ■ no affidavit filed, as contemplated by section 3348, stating the amount still due and unpaid on the redemptioner’s judgment. It will be observed that neither the judgment debtor nor the purchaser under the Tyler judgment, objected to the sufficiency of the redemption. Shane, the purchaser, received the money, and Allen, the debtor, does not complain. And Avhile the statute (§ 3333) declares that for the first six months after the sale the right of the judgment defendant to redeem is exclusive, we incline to the opinion that a subsequent lien holder cannot be heard to make the objection. In other words, that the defendant and purchaser can alone contest the validity of such premature deposit or payment of the money.

2. — informal redemption: assignment of certificate. But, however this may be, the facts of this case are, that plaintiff not only paid the money to the purchaser (for ^Ie purpose of redeeming, it is said), but took an assignment of his certificate, and caused the game to pe noted 0n the record of the *455sheriff’s sale. Whether then the owner of the Daniels & Co. judgment or not, he clearly had a right to purchase this certificate, and the redemption money would belong to him, and not to the original purchaser. So, also, if there had been no redemption, he would have .-been entitled to the sheriff s deed.

After this, and before Crow redeemed, plaintiff had the undeniable record title to the second, or Daniels & Co. judgment. Before this he had the equitable right thereto, and in July, and before Crow’s redemption, he obtained the legal right. When, therefore, Crow redeemed, he knew, or was bound to know, that plaintiff was the holder of the certificate given by the sheriff to the purchaser, and also the owner of the second judgment. And in this view of plaintiff’s rights and position, the objection based upon the want of the affidavit provided for in section 3348 is without weight; for under the circumstances he is to be treated as the assignee of the certificate and second judgment, and not as a redemptioner simply.

3. — affidavit. And yet, in this connection, the writer of this opinion cannot resist the expression of at least a doubt whether the provision of section 3348 applies to redemptions made by creditors before the expiration of nine months from the date of sale. There is certainly much force in the thought that this refers to the redemption by creditors, after nine months, as provided in section 3346 and subsequent sections. The statute, I concede, is not clear in its several provisions; but, to say no more, a comparison of sections 3338 — 40 with 3348, 3349 — the first contemplating the right to pay to the party, clerk or sheriff, while the latter confines the payment or deposit with the olerh — in connection with the thought that in speaking of redemptions prior to the expiration of the nine months, nothing is said about an affidavit — I say these considerations seem to favor the argument, that *456plaintiff was not required to file the affidavit giving the amount unpaid and due on his claim.

Waiving this, however, in relation to the plaintiff’s ease, treating him as the owner of the certificate and second judgment, what were his rights, as thus viewed, and what comes in virtue of the redemption? Could Crow’s, by redeeming from the Shane purchase, take the property divested of the lien of the Daniels & Co. judgment? The statute is the best answer to these inquiries. After giving to creditors, whose demands are liens on the real estate, the right to redeem within nine months (§ 3333), and that they may redeem from each other within that time (§ 3335), it declares the terms in all cases to be the reimbursement of the amount paid by the then holder, added to the amount of his own lien, with interest,” etc. (§ 3336). But if a senior creditor redeem from his junior, he is only required to pay those liens which are paramount to his own (§ 3338). The junior creditor redeems from the senior by paying the full sum due, and thereby becomes vested with the title to the judgment so redeemed (§ 3339).

As plaintiff was therefore the holder of the certificate, and a lien of his own, by the purchase of the Daniels & Co. judgment, Crow, in redeeming, was bound to pay both; and if he had done this, his title would have been absolute, unless there had been redemption as contemplated by section 3346,,and subsequent sections, and with which we now have nothing to do. That this is a correct view of the rights of these qjarties, we entertain no doubt. Plaintiff was, in effect, a purchaser under the first judgment, and the owner of the second lien, when Crow undertook to redeem. And the owner of the third lien could not, by simply paying the amount of the bid with interest, cut . off and defeat the second and paramount or senior lien. Whether, if plaintiff had held the second judgment, and *457had not purchased the first certificate, Crow, by his redemption, would not have taken the title without liability to pay such second lien, is a very different question. So is the point ruled in Hays v. Thode (18 Iowa, 51" court="Iowa" date_filed="1864-12-19" href="https://app.midpage.ai/document/hays-v-thode-7093172?utm_source=webapp" opinion_id="7093172">18 Iowa, 51), where a mortgage creditor redeemed from the sale, while the certificate was held by the purchaser (who was the judgment creditor), in which case it was held that the redemptioner was only bound to pay the amount lid, with interest. We conclude, therefore, that the demurrer was improperly sustained, and that, upon the case made, plaintiff is entitled to the relief asked.

The cause will be remanded with leave to defendants to answer, if they shall be so advised. And it is also ordered that defendants, if they so elect, may perfect their redemption, by paying the amount of the second judgment with interest and costs; and in that event plaintiff shall surrender all claim to the land under his lien, and as the holder of the first certificate. If they do not thus elect, and if they do not answer over, the sheriff’s deed to Conklin will be set aside — the money paid by Crow to be withdrawn, and the officer execute a deed to plaintiff.

Keversed.