191 P. 647 | Utah | 1920
Lead Opinion
In this proceeding plaintiff seeks to redeem from judicial sale certain certificates of sale of real property. No evidence was heard by the court, but it was agreed by counsel that the allegations of the answer should be accepted as the facts in the case, and the matter was submitted to and determined by the court on the admissions and allegations contained in the answer. The facts out of which the controversy arose are as follows: In February, 1913, one George B. Greenwood, now deceased, gave his note to the defendant bank for money loaned, and at the same time assigned and delivered as security for said loan a certificate of sale of certain school lands from the state of Utah, known as certificate No. 8110, and dated July 4, 1904. This certificate of sale purported to sell to said Greenwood in the manner provided by law to be paid for in ten annual payments the agreed price as stated therein. The certificate further provided that said Greenwood, his assigns, heirs, or legal representatives, upon making all payments provided for therein, and upon the surrender of the certificate, should receive patent from the state for the lands therein described. It was also provided that if default be made in the payments the certificate would be forfeited, and the title to the lands revert to the state. It further appears in the answer that it was agreed between the defendant bank and said Greenwood that upon his failure to repay the' money borrowed the defendant might sell the said certificates at public or private sale without notice, and that the defendant might become the purchaser. It likewise appears that on or about the same date Greenwood, in consideration for a loan to him by the Bank of Pioche, gave his note- for money borrowed, and assigned and delivered to that bank another certificate, No. 9516, for the purchase of land under like provisions and conditions as in the loan made by the defendant bank. The note of the Bank of Pioche was assigned to the defendant, State Bank of Beaver County. It further ap
It will be observed that the controlling question, so far as this appeal is concerned, is; Was the interest of the deceased,
The date of certificate No. 8110, as found in the record, is July, 1904. The date of certificate No. 9516 is not given. Under the provisions authorizing the sale of public lands by the state, the purchaser is required to make annual payments of at least ten per cent, of the purchase price. Section 55S9, supra. It is therefore safe to assume that at the dates the certificates were delivered to the banks at least eight or nine annual payments had been made. That the certificates and the payments made thereunder gave Greenwood in his lifetime, and his heirs thereafter, an interest in the real property described, cannot well be doubted. The authorities are all to that effect, and we are not aware that any one contends to the contrary in this proceeding. It is contended, however, as we understand the appellants, that the certificates of sale created a right or title to the property, and were therefore personal property under the rules of construction stated in Comp. Laws Utah 1917, section 5848, subds. 9-11. Also that, it being personal property, the assignment and delivery to the banks constituted pledges, and should be so treated.
This contention seemingly does not take into account what must have been the real intent of the parties at the time of the transactions. The banks did not accept the mere evidences of interests in real property as security for the ob
“Although, the certificates, as contracts in writing may, for some purposes, be regarded as chattels or choses in action, yet it was evidently not the intention of the parties to pledge them as such, but to pledge Wood’s estate in the land represented by them as a security for the payment of the debt. That estate was something tangible and of value, hut the mere certificates were worthless in the hands of any one except the holder of the estate. If there is no distinction between contracts of that kind made with the state and those made by private individuals — and I can see no reason for any — then Wood was possessor of an equitable estate of inheritance in the land, subject, of course, to forfeiture for the nonfulfillment of the conditions of the agreements, but nevertheless, until forfeited, perfect and indefeasible. It was an interest in the fee, and a performance of the conditions would have been followed by the acquisition of it. In case of his death it would have descended to his heirs.’’ ^
We conclude, therefore, that the assignment and delivery of the certificates in this case constituted not mere pledges of personal property, but equitable mortgages of the interest of the mortgagor or borrower in the real property described therein. Under the certificate of sale and the law authorizing the issuance of the same the purchaser was entitled to immediate possession, and could enter upon the land, cultivate it, improve it, and was entitled to any crops produced thereon. Under the revenue law of the state, he was assessed and required to pay taxes, not only upon the improvements made upon the real estate, but upon the interest in the land to the extent of the payments made prior to levying
“Where a contract for the purchase of real estate,_ or a bond for a deed, Is assigned to a third person as security for a debt, and with an agreement to reassign on payment of the debt, this constitutes in equity a mortgage on the assignor’s equitable title to the land in question.”
To the same effect is the opinion of the Oregon Supreme Court in Lovejoy v. Chapman, 23 Or. 571, 32 Pac. 687.
The only authority found contrary to the conclusion here reached is the case from the Supreme Court of Montana of Ringling v. Smith River Development Co., 48 Mont. 467, 138 Pac. 1098. While it is true the court in that case held that a contract for the sale of real estate could be pledged for an indebtedness, the court seems to have based its conclusion largely upon some rule of practice that before the appellate court would disturb a judgment of the district court “the appellant must assume the burden of showing that the trial court’s conclusion is erroneous under any possible state of facts consistent with the declaration of the record. The court concluded that the appellant had failed to maintain this burden.
Having determined that the interest of the deceased in the real property under the certificate of sale was an interest in land, it necessarily follows that, under Comp. Laws Utah 1917, section .6941, he, or the administrator of his estate is entitled to redeem upon the payment of the amount specified to be paid upon the redemption of property sold either on fore: closure or under execution. By the terms of section 6940, supra, any interest in real property greater than a leasehold of two years unexpired term is subject to redemption.
No complaint is made by either party that the sale of the certificates was not regular, although it is conceded by all parties that notice was not given as required by the statute
It appears from the record in this case that in order to keep the contracts alive or to prevent a forfeiture the defendant bank as purchaser has paid some annual installments falling due, as well as taxes levied against the property. Apparently no account was taken of these items
The court also directs that the property redeemed “shall be free and clear of all liens and incumbrances of every character connected Avith or growing out of the proceedings in the case of State Bank of Beaver v. Ida P. Greenwood, Adm’r.” The court was not called upon to determine the status of this property after it is redeemed, whether it should be free from liens or otherwise. The question for determination by the court was the right of the plaintiff as the administrator of the original debtor to redeem the
It follows from the foregoing that the judgment of the
Rehearing
On Petition for Rehearing.
Appellants, by petition, ask this court to modify its order refusing costs on appeal to either party, and moves the court to direct that such costs be paid by respondent. They assign as reasons: (a) Appellant bank, by reason of the administra-trix declining to approve its claim, was compelled to institute suit to recover the amount due the bank from the estate; (b) in this suit brought against the sheriff, requiring him to issue a certificate of redemption, no offer was made to repay to the bank taxes paid by it, and the annual payments made to the state to protect the interests of both the purchaser and the redemptioner; (c) the lower court in its judgment directed that the land in question be free from all liens and incumbrances by reason of the judgment entered in the former action.
The appeal is from the entire judgment; that is, from the order directing the sheriff to issue a certificate of redemption, as well as the failure of the court to require as a condition precedent of redemption the repayment of the amounts expended for taxes and the annual payments due the state. Had the appeal been from the refusal of the court to require the repayment of the money expended for taxes, etc., only, it would be just to allow appellants all their costs, but the appeal brought to this court for review the entire judgment of the district court, and as the right to redeem was affirmed, it would not be right to tax the eutire costs against respondent.