Summerville v. Sorrenson

136 N.W. 938, 23 N.D. 460, 1912 N.D. LEXIS 98

Opinions

Burke, J.

The Kenmare National Bank was the holder of a sheriff’s certificate issued to it upon a tract of land sold under mortgage foreclosure by advertisement. Upon the last day hut one of the period of redemption, plaintiffs attempted to redeem from said certificate in accordance with § 7146, Revised Codes of 1905, claiming that they were junior mortgagees.' They served upon the sheriff, at different times during said day, the following papers: First, a notice of redemption, stating that they desired to redeem “by virtue of a junior mortgage upon said premises dated July 25, 1906, and recorded September 1, 1906, at 8:30 a. m., in book 65 of mortgages, page 42, said mortgage being made to the Minneapolis Thresher Company and by them assigned to the undersigned by an instrument in writing dated May 11, 1909, and filed for record in the office of the register of deeds, Ward county, North Dakota, on the 17th day of July, 1909, and recorded in hook 113 of mortgages, page - — , and we the undersigned tender herewith the sum of $1,517.85,” etc.; second, a certified copy of the assignment of the mortgage; third, an affidavit of the plaintiffs to the effect that they were legally entitled to redeem from the sheriff’s certificate by virtue of the mortgage held by them, and that there was due upon said mortgage the sum of $2,500; fourth, a purported note by the deputy register of deeds of Ward county, in words as follows:

I, S. S. Reishus, deputy register of deeds in and for Ward county, North Dakota, do hereby certify that I have examined the records in regard to the S. i N. W. and lots 3 and 4 see. 5, twp. 163, rge. 88, and find that the statements regarding the mortgage recorded in book 65 of mortgages, page 42, as above set forth, are correct and true.

(Signed) S. S. Reishus,

Deputy Register of Deeds.

At the same time they paid to the sheriff the money above mentioned. The sheriff, -upon the instigation of the bank, refused to execute and deliver to them a certificate of redemption and an alternative writ of mandamus issued from the district court to the sheriff. The return of the sheriff set forth the facts as stated above, and asked that the Ken-mare bank be allowed to intervene and contest the regularity of the redemption. This was allowed, and the defendant bank insisted that the attempted redemption was void for failure to comply with said § 7146. The question for us to decide is whether the redemption was valid or void. Sec. 7146 reads: “A redemptioner must produce to the officer or person from whom he seeks to redeem and serve with his notice to the sheriff: (1) A copy of the docket of the judgment under which he claims the right to redeem, certified by the clerk of the district court of the county where the judgment is docketed, or if he redeems upon a mortgage or other lien, a note of the record thereof certified by the register of deeds; (2) A copy of the assignment necessary to. establish his claim, verified by the affidavit of himself or of a subscribing witness thereto; (3) an affidavit, by himself or his agent, showing the amount then actually due on the lien.”

Respondents contend that the proceedings taken by the plaintiff do not amount to a legal redemption, for the following reasons: First, that the relators did not serve with their notice of redemption a note of the record of the mortgage under which they claim to redeem, certified by the register of deeds; second, that the copy of the assignment of the mortgage served upon the sheriff was not verified by the relators- or the subscribing witnesses as required by law. Under the first head they point out that the certificate served upon the sheriff was signed by the deputy register of deeds in his own name and right, without signing the name of his principal. In the case of Wilson v. Russell, 4 Dak. 376, 31 N. W. 649, this court, speaking of a deputy sheriff, says: “A deputy sheriff has no power nor authority other than that which pertains to him and which he exercises as acting for the sheriff by whom he is appointed, to whom he gives bond, and to whom also he is responsible for his acts as such deputy; the sheriff himself, in turn, being responsible for the acts of his deputy as such.” As the statute authorizing the appointment of a deputy register of deeds and a deputy sheriff are the same, we think the above entitled case is in point. This-is also the holding of Ditch v. Edwards, 2 Ill. 127, 26 Am. Dec. 414, and of the authorities collected in the note in the American Decisions, supra, wherein it is stated: “The question of a deputy’s power to. sign his own name without specifying his principal most often arises. And the cases, with few exceptions, are uniform that the return, to be valid, should be in the name of the sheriff.” Citing many cases. In line with .these authorities we must hold that- the purported note of record issued by the deputy register of deeds was a nullity, having no effect whatever, and leaving the redemption in the same condition as though none had been served whatever upon the sheriff. As to the legal effect of this omission, we quote from 27 Cyc. page 1832 (E) the following general rule: “Where redemption from a mortgage is made on common-law or equitable grounds, the form in which the transaction is cast is not very material. . . . But in the case of a redemption after sale on foreclosure, the provisions of the statute granting the right and regulating the manner of its exercise must be strictly pursued.” In Wilcoxson v. Miller, 49 Cal. 193, it was held that “a person claiming the right to redeem from a sheriff’s sale, as a judgment creditor, must produce for the sheriff a copy of the docket of the judgment, and an attempted redemption is ineffectual without such production, and the sheriff’s deed is void. The power of the sheriff in relation to redemption is purely statutory, and his acts are nugatory unless the provisions of the statute are pursued.” In the case of Tinkcom v. Lewis, 21 Minn. 132, the attempting redemptioner failed to file the affidavit as to the amount due upon his lien, as required by their statutes. The court held this omission fatal to the redemption, and used this language: “The sections of chapter 81 which confer the right to redemption, . . . being of a remedial character, . . . should receive such liberal construction, . . . but by no allowable liberality of construction can we hold that the computation made by the defendants and the sheriff 'of . . . L. & S’s claim on the 80 acres’ is equivalent to the affidavit required by the third subdivision of § 14. The right of redemption from sales upon foreclosure by advertisement is wholly the creature of the statute; and while we would construe the statute liberally in favor of the mortgagor and redeeming creditors, we cannot dispense with or repeal its positive terms. Merely formal deviations or irregularities may be overlooked; but there must be a substantial compliance with the express requirements of the statute, in order to a valid redemption. The language of § 14 is clear and imperative. The person desiring to redeem shall produce to the sheriff . . . ‘an affidavit of himself or his agent, showing the amount then actually due on his lien.’ The object of this requirement is to provide the evidence whereby a junior creditor may know the amount necessary to be paid to the senior credit- or upon a redemption from him.” In the same case it is held that the holder of the certificate “is not affected by the sheriff’s waiver, the sheriff not being in any sense his agent.” Citing Horton v. Maffitt, 14 Minn. 289, Gil. 216, 100 Am. Dec. 222; Davis v. Seymour, 16 Minn. 210, Gil. 184. The redemption was held invalid. We have purposely quoted at length from this Minnesota case, because it is one of the cases relied upon strongly by the appellant. In the same case, and as an additional reason for the invalidity of the redemption, it is insisted that the junior mortgagee did not produce to the sheriff a copy of his assignment as required by the Code, but in its stead produced the original instrument, together with the indorsement of the register of deeds that it had been duly recorded. The court said that the statute did not require the sheriff to refuse a higher class of proof than named therein. This seems to be their idea of informal deviations from the Code. To the same effect are the cases of Wilson v. Hayes, 40 Minn. 531, 4 L.R.A. 196, 12 Am. St. Rep. 754, 42 N. W. 467; Pamperin v. Scanlan; 28 Minn. 345, 9 N. W. 868, and other cases relied upon by appellant. Whenever the omission is material the redemption fails. In Spackman v. Gross, 25 S. D. 244, 126 N. W. 393, the redemption certificate issued to Spackman was set aside because a duplicate of the notice of redemption was not filed with the register of deeds, although he had made some attempt to comply with the said provision by leaving the notice there several days. See also Chapin v. Kingsbury, 135 Mass. 580, where it is held that recording an instrument does not comply with the statute requiring it to be filed.

Upon the authority of the above cases we are inclined to the holding that the omission of the note by the register of deeds required by § 7146 is fatal to the redemption, and that the purported certificate by the deputy does not supply the omission.

This conclusion renders it unnecessary to pass upon the other objections raised by the respondents, — that the copy of the assignment of the mortgage was not properly verified, and that the appellants are not, upon the records before us, proven tó be redemptioners. The trial court properly quashed the writ upon the return, and the judgment is affirmed.

Mr. Justice Goss, being disqualified, took no part in the decision. Honorable Challes E. Templeton, Judge of the Eirst Judicial District, sitting in his stead on the rehearing only.