Parke v. Hush

13 N.W. 668, 29 Minn. 434, 1882 Minn. LEXIS 144

• Court: Supreme Court of Minnesota
• Decided: October 17, 1882
• Status: Published

Opinions

Gileillan, C. J.

From February 1, 1878, to May 7, 1878, B. J. Baldwin owned the land in controversy. Judgments were entered and docketed against him in the following order: February 7, 1878, one in favor of Mary B. Brown; February 8, 1878, one in favor of John B. ITanseom; and February 21, 1878, one in favor of defendant. February 18,1878, executions on the first two judgments were issued. That on the first judgment misstated the amount of it, but as it described it accurately in all other respects, that mistake did not vitiate it. May 7, 1878, the real estate was sold under both of these judgments and executions, this plaintiff becoming the purchaser. May 7, 1879, defendant duly filed notice of his intention to redeem from the sale under the first judgment, and May 12, 1879, made application to the clerk of the district court to make such redemption, presented to him the proper proofs, paid him the amount of the plaintiff’s bid on the sale under the 'first judgment, with interest and costs, and took the clerk’s receipt therefor. T~ue statement of facts found does not show under which judgment the property was first sold, nor is it material.

The court below held that defendant is the owner under the sale upon the judgment first in date, and his.redemption therefrom, upon the ground, evidently; — following Dickinson v. Kinney, 5 Minn. 332, 409, — that the sale under that judgment passed at once to the purchaser all the estate of the judgment debtor in the land, so that nothing could pass by the sale under the second-judgment.

The correctness of the decision in Dickinson v. Kinney may be doubted, even under the statute as it then stood, and the statute has since been changed, so that the decision is inapplicable. The clause in Pub. St. c. 61, § 116, providing that, upon redemption by the owner, the sale is terminated “and he is restored to his estate,” on which the court laid great stress, has been omitted, and the provisions of Gen. St. 1878, c. 66, § 322, inserted. These provisions are to the effect that the certificate of sale shall, at the expiration of the time for redemption, pass all the right, title, and interest of the person whose property is sold, thus postponing the passing of the title until that time, and in that respect placing execution sales on the same footing as foreclosure sales. Daniels v. Smith, 4 Minn. 117, (172;) Donnelly v. Simonton, 7 Minn. 110, (167;) Horton v. Maffitt, 14 Minn. 289. It follows that, pending the time for redemption by the owner from sale under a first judgment, there is in him an interest which may be sold under a second judgment.

Whether in this case the sale under the second judgment was prior or subsequent to that under the first, the right under it was subject to the right created by the sale under the first. The judgment could not be sustained on the ground on which the court below rendered it; but it may on the ground that the rights of the plaintiff under the sale upon the first judgment passed, to defendant upon his redemption, and, there being no redemption under the second judgment, or under the sale upon it, the rights thereunder were defeated. Unless there is something to distinguish the case from Pamperin v. Scanlan, 28 Minn. 345, the defendant could, under his judgment lien, redeem from the sale under the first judgment, without paying the amount bid by plaintiff upon the sale under the second judgment.

There is some difference between the provisions of the statute regulating redemptions from execution sales and those of the statute regulating redemptions from foreclosure sales. The former statute provides (Gen. St. 1878, c. 66, § 324,) that the judgment debtor, his heirs or assigns, may redeem by paying to the purchaser the amount of his bid, with interest, “and if the purchaser is a creditor having a, prior lien, the amount thereof, with interest.” The words we have quoted-are not in the other statute. Gen. St. 1878, c. 81, § 13. It is clear, in each statute, that the first redeeming creditor may redeem by paying what must be paid by the judgment debtor in the one case, and the mortgagor in the other. Gen. St. 1878, c. 66, § 324; c. 81, § 16. It is equally clear in this case that while the judgment debtor’s right of redemption from the sale under the first judgment existed, he could make it by paying the amount bid on that sale, with interest. For although, in respect to the amount of his bid at the sale under the second judgment, the purchaser would doubtless be regarded as a creditor having a lien, within the meaning of the statute regulating redemptions, he certainly was not in respect to that a creditor having a prior lien; that is, alien prior to that on which the sale was had. The lien being subsequent to that on which the sale was had, the plaintiff stood in respect to it in the position of the defendant in Pamperin v. Scanlan; and, under the rule applied in that case, it was necessary, in order to tack the amount bid at the salo under the second judgment to the amount bid at the sale under the first, so that a subsequent lienholder would have to pay both amounts to redeem under the latter, that he should comply with the statute as a redemptioner.

Judgment affirmed.