ROONEY, Justice, Retired.
This appeal is from a summary judgment in favor of junior mortgagees, such judgment being premised on the proposition that, after foreclosure by the senior mortgagee, the junior mortgages were validated through payment of the redemptive amount by the mortgagor to the senior mortgagee in return for a certificate of redemption and the certificate of sale.
We affirm.
Appellant Newman mortgaged non-agricultural real property owned by him in Laramie County as follows:
1.On April 15, 1985, to the Equality State Bank to secure a note for $25,-000.
2. On July 3,1985, to appellee American National Bank to secure a note for $6,870.03.
3. On April 1, 1987, to appellees Joe and Gloria Gemelli to secure a note for $18,000.
The same were properly made of record with the County Clerk of Laramie County.
On April 1, 1988, the Equality State Bank foreclosed its mortgage pursuant to a power of sale contained therein, and such bank purchased the property at the sale, receiving a certificate of sale from the sheriff.
Then, on May 4, 1988, for value, the Equality State Bank assigned such certificate of sale to appellees Joe and Gloria Gemelli. On June 30,1988, and in consideration of $29,079.73 (the amount bid at the sheriff's sale plus interest at the rate of 10% per annum from date of sale), appel-lees Joe and Gloria Gemelli assigned the certificate to the mortgagor, appellant Newman.
On July 31, 1988, appellant
Newman assigned the certificate to appellant Rasmussen. On August 2, 1988 (immediately after the expiration of the statutory period for redemption), a sheriff’s deed was issued to appellant Rasmussen.
On February 24, 1987, and prior to the third mortgage to Joe and Gloria Gemelli, appellee American National Bank filed a complaint in the district court against appellant Newman to foreclose its second mortgage. On September 16, 1988, appel-lees Joe and Gloria Gemelli filed a complaint in the same court against appellants Newman and Rasmussen to nullify and declare void the transfer of the certificates of sale from appellees Joe and Gloria Gemelli to appellant Newman and from appellant Newman to appellant Rasmussen, alleging that the transfers were obtained through fraud. They also requested judicial foreclosure of their third mortgage. The two cases were consolidated by the district court for all purposes.
Validity of the Junior Mortgages
Appellants argue that the junior mortgagees forfeited any right under their mortgages by not pursuing the statutory scheme of redemption, i.e., by not having certified the redemption and by not recording it.
Appellants fail to give proper consideration to the fact that a certificate of redemption and assignment of the certificate of sale was issued
to the mortgagor,
appellant Newman, within the statutory time period for doing so. The consideration therefor was exactly that directed by statute to accomplish a redemption. As statutorily mandated, such payment renders void “the sale and certificate.”
Additionally, since the certificate was only a lien on the property
(Powers v. Pense,
20 Wyo. 327, 123 P. 925 (1912)), with the legal title still being in appellant — mortgagor Newman, the acquisition by Newman of the certificate (an equitable interest) merged the two interests and the equitable interest was discharged.
Arnold v. Nichols,
25 Wyo. 458, 172 P. 335 (1918).
“Joinder of the ownership in land and of the lien thereon in one person creates a merger and terminates the lien.
“A merger may arise under three circumstances: (a) Where mortgagee acquires the fee; (b) Where the mortgagor acquires the mortgage; and (c) Where a third party acquires both the mortgage and the fee.”
Thompson on Real Property, § 4798 at 46 (1981 Supp.) (footnotes omitted).
W.S. 1-18-108 providing for recordation of an assignment of a certificate of purchase does not have pertinency to this matter. Its purpose is to give constructive
notice to anyone concerning the status of ownership or other interest in “lands.”
“Each and every deed, mortgage, instrument or conveyance touching any interest in lands, made and recorded, according to the provisions of this chapter, shall be notice to and take precedence of any subsequent purchaser or purchasers from the time of the delivery of any instrument at the office of the register of deeds (county clerk), for record.”
W.S. 34-l-121(a).
In this instance, appellants had
actual
notice concerning such status as it pertained to the mortgages. Appellant Newman was a party to all three mortgages. He was aware of the foreclosure, of the sale of the certificate of sale to Joe and Gloria Gemelli and of the subsequent sale of it to him. Appellant Rasmussen in her counterclaim recited full knowledge of the status of the mortgages and of the certificate of sale.
Where there is actual notice, constructive notice becomes unnecessary.
Globe Mineral Co. v. Anderson,
78 Wyo. 17, 318 P.2d 373 (1957);
Western Standard Uranium Co. v. Thurston,
355 P.2d 377 (Wyo.1960).
Since the payment made by mortgagor-appellant Newman for the assignment of the certificate of sale and certificate of redemption made
void
the sale and certificate,
the rights and obligations of junior mortgagees should be as they were before the sale. Additionally, public policy requires such validation or revival of junior mortgagees. The potential for a mortgagor to eliminate junior mortgagees by allowing a foreclosure by the senior mortgagee and then purchasing the certificate of sale issued to the senior mortgagee is a solid basis for such public policy.
In summary, when a mortgagor acquires the equitable interest of the senior mortgagee before it ripens into legal ownership of the property, such interest merges with the mortgagor’s legal title, and the senior mortgage ceases to exist. Such is equivalent to a redemption under W.S. 1-18-103(a) and liens of junior mortgagees are validated. Accordingly, the following provisions of the summary judgment properly reflect the rights and relationship of the parties:
“1. That Sheriffs Deed to Defendant Jane L. Rasmussen should be, and is hereby, declared null, void and of no effect.
“2. Title to the subject property lies in Defendant Jane Rasmussen, subject to the second mortgage of Plaintiffs Joe and Gloria Gemelli and the first mortgage of Plaintiff American National Bank.
“3. That mortgage from Defendant Thomas D.
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ROONEY, Justice, Retired.
This appeal is from a summary judgment in favor of junior mortgagees, such judgment being premised on the proposition that, after foreclosure by the senior mortgagee, the junior mortgages were validated through payment of the redemptive amount by the mortgagor to the senior mortgagee in return for a certificate of redemption and the certificate of sale.
We affirm.
Appellant Newman mortgaged non-agricultural real property owned by him in Laramie County as follows:
1.On April 15, 1985, to the Equality State Bank to secure a note for $25,-000.
2. On July 3,1985, to appellee American National Bank to secure a note for $6,870.03.
3. On April 1, 1987, to appellees Joe and Gloria Gemelli to secure a note for $18,000.
The same were properly made of record with the County Clerk of Laramie County.
On April 1, 1988, the Equality State Bank foreclosed its mortgage pursuant to a power of sale contained therein, and such bank purchased the property at the sale, receiving a certificate of sale from the sheriff.
Then, on May 4, 1988, for value, the Equality State Bank assigned such certificate of sale to appellees Joe and Gloria Gemelli. On June 30,1988, and in consideration of $29,079.73 (the amount bid at the sheriff's sale plus interest at the rate of 10% per annum from date of sale), appel-lees Joe and Gloria Gemelli assigned the certificate to the mortgagor, appellant Newman.
On July 31, 1988, appellant
Newman assigned the certificate to appellant Rasmussen. On August 2, 1988 (immediately after the expiration of the statutory period for redemption), a sheriff’s deed was issued to appellant Rasmussen.
On February 24, 1987, and prior to the third mortgage to Joe and Gloria Gemelli, appellee American National Bank filed a complaint in the district court against appellant Newman to foreclose its second mortgage. On September 16, 1988, appel-lees Joe and Gloria Gemelli filed a complaint in the same court against appellants Newman and Rasmussen to nullify and declare void the transfer of the certificates of sale from appellees Joe and Gloria Gemelli to appellant Newman and from appellant Newman to appellant Rasmussen, alleging that the transfers were obtained through fraud. They also requested judicial foreclosure of their third mortgage. The two cases were consolidated by the district court for all purposes.
Validity of the Junior Mortgages
Appellants argue that the junior mortgagees forfeited any right under their mortgages by not pursuing the statutory scheme of redemption, i.e., by not having certified the redemption and by not recording it.
Appellants fail to give proper consideration to the fact that a certificate of redemption and assignment of the certificate of sale was issued
to the mortgagor,
appellant Newman, within the statutory time period for doing so. The consideration therefor was exactly that directed by statute to accomplish a redemption. As statutorily mandated, such payment renders void “the sale and certificate.”
Additionally, since the certificate was only a lien on the property
(Powers v. Pense,
20 Wyo. 327, 123 P. 925 (1912)), with the legal title still being in appellant — mortgagor Newman, the acquisition by Newman of the certificate (an equitable interest) merged the two interests and the equitable interest was discharged.
Arnold v. Nichols,
25 Wyo. 458, 172 P. 335 (1918).
“Joinder of the ownership in land and of the lien thereon in one person creates a merger and terminates the lien.
“A merger may arise under three circumstances: (a) Where mortgagee acquires the fee; (b) Where the mortgagor acquires the mortgage; and (c) Where a third party acquires both the mortgage and the fee.”
Thompson on Real Property, § 4798 at 46 (1981 Supp.) (footnotes omitted).
W.S. 1-18-108 providing for recordation of an assignment of a certificate of purchase does not have pertinency to this matter. Its purpose is to give constructive
notice to anyone concerning the status of ownership or other interest in “lands.”
“Each and every deed, mortgage, instrument or conveyance touching any interest in lands, made and recorded, according to the provisions of this chapter, shall be notice to and take precedence of any subsequent purchaser or purchasers from the time of the delivery of any instrument at the office of the register of deeds (county clerk), for record.”
W.S. 34-l-121(a).
In this instance, appellants had
actual
notice concerning such status as it pertained to the mortgages. Appellant Newman was a party to all three mortgages. He was aware of the foreclosure, of the sale of the certificate of sale to Joe and Gloria Gemelli and of the subsequent sale of it to him. Appellant Rasmussen in her counterclaim recited full knowledge of the status of the mortgages and of the certificate of sale.
Where there is actual notice, constructive notice becomes unnecessary.
Globe Mineral Co. v. Anderson,
78 Wyo. 17, 318 P.2d 373 (1957);
Western Standard Uranium Co. v. Thurston,
355 P.2d 377 (Wyo.1960).
Since the payment made by mortgagor-appellant Newman for the assignment of the certificate of sale and certificate of redemption made
void
the sale and certificate,
the rights and obligations of junior mortgagees should be as they were before the sale. Additionally, public policy requires such validation or revival of junior mortgagees. The potential for a mortgagor to eliminate junior mortgagees by allowing a foreclosure by the senior mortgagee and then purchasing the certificate of sale issued to the senior mortgagee is a solid basis for such public policy.
In summary, when a mortgagor acquires the equitable interest of the senior mortgagee before it ripens into legal ownership of the property, such interest merges with the mortgagor’s legal title, and the senior mortgage ceases to exist. Such is equivalent to a redemption under W.S. 1-18-103(a) and liens of junior mortgagees are validated. Accordingly, the following provisions of the summary judgment properly reflect the rights and relationship of the parties:
“1. That Sheriffs Deed to Defendant Jane L. Rasmussen should be, and is hereby, declared null, void and of no effect.
“2. Title to the subject property lies in Defendant Jane Rasmussen, subject to the second mortgage of Plaintiffs Joe and Gloria Gemelli and the first mortgage of Plaintiff American National Bank.
“3. That mortgage from Defendant Thomas D. Newman to Plaintiffs Joe and Gloria Gemelli should be, and is hereby, judicially foreclosed. That mortgage from Defendant Thomas D. Newman to Plaintiff American National Bank should be, and is hereby, judicially foreclosed.
“4. Judgment is entered against Defendant Thomas D. Newman and in favor of Plaintiffs Joe and Gloria Gemelli in the amount of Nineteen Thousand Six Hundred Fifty-Nine Dollars and Seven Cents ($19,659.07), plus interest thereon from and after December 19, 1988 at the rate of Four Dollars and Ninety-Six Cents ($4.96) per day, plus Three Thousand Two Hundred Ninety-Eight Dollars ($3,298.00) for said Plaintiffs’ costs and attorney’s fees in collecting those amounts due and owing under the terms of that promissory note and mortgage from Defendant Thomas D. Newman. Judgment is entered against Defendant Thomas D. Newman and in favor of Plaintiff American National Bank in the amount of Twelve Thousand Six Hundred Fifty-Four Dollars and Ninety-Nine Cents ($12,654.99) plus interest thereon accruing thereon at the rate of Two Dollars and Ninety-Six Cents ($2.96) per day from and after April 17, 1989.
“5. Upon entry of this Order, the subject property is to be advertised and sold pursuant to W.S. 1-18-101 et seq.”
Summary Judgment Without a Motion for Such
Appellants also question the ability of the district court to enter a summary judgment in favor of appellee American National Bank absent a motion for such. In its order granting motions for summary judgment, the district court concluded in part:
“There exist no issues of material fact and Plaintiffs Joe and Gloria Gemelli and American National Bank are entitled to judgment as a matter of law. Their Motion for Summary Judgment are granted and Defendant Jane Rasmussen’[s] Motion for Summary Judgment is denied. There exist no issues of material fact regarding Plaintiff American National Bank’s right to judgment. Though it has not moved for Summary Judgment, the Court may grant Summary Judgment to a non-moving party when it is entitled to the same and to not do so would result in the waste of judicial resources.”
We agree. Although the entry of a summary judgment absent a motion therefor should be a rare occurrence, the entry of a summary judgment in favor of a party plaintiff who moved for such and a failure to do likewise in favor of another party plaintiff who did not move for such, but who is subject to the same material facts and legal issues, would result in additional proceedings on issues already decided in the matter and a “waste of judicial resources.”
In this case, motions for summary judgment were made by (1) appellees Joe and Gloria Gemelli against appellant Newman, (2) appellees Joe and Gloria Gemelli against appellant Rasmussen, (3) appellant Rasmussen against appellees Joe and Gloria Gemelli, and (4) appellant Newman against appellee American National Bank. As noted, the case of
Newman v. American National Bank
was consolidated by the district court with that of
Newman and Rasmussen v. Joe and Gloria Gemelli.
Issue of Material Fact
Appellant Newman lists as an issue whether or not the summary judgment in favor of Joe and Gloria Gemelli is proper “when there is a genuine issue of material fact as a matter of law, as shown throughout the pleadings,” but he does not designate or specify the material fact over which there is disagreement, nor does he argue the issue. In his motion for summary judgment against appellee American National Bank, appellant Newman states that “[tjhere is no issue as to any material fact” —a position contrary to that alleged with reference to this issue. This court will not consider or respond to issues alleging error which are not supported by cogent argument and proper citation of authority or which are not clearly defined.
Hance v. Straatsma,
721 P.2d 575 (Wyo.1986);
Tremblay v. Reid,
700 P.2d 391 (Wyo.1985);
Haddenham v. Board of County Commissioners of Carbon County,
679 P.2d 429 (Wyo.1984) and cases cited therein.
Affirmed.