Wade v. Major

162 N.W. 399, 36 N.D. 331, 1917 N.D. LEXIS 185

• Court: North Dakota Supreme Court
• Decided: March 31, 1917
• Status: Published

Opinions

Robinson, J.

In December, 1912, the plaintiff made to the first-named defendants a purchase-money mortgage on 320 acres of land in Billings county (W¿ 15-134-100), to secure $1,100, and interest. The mortgage was promptly foreclosed by a sale of the land to the mortgagees on February 26th, 1914, for $1,287.55. In the latter part of February, 1915, to redeem from the foreclosure sale, the plaintiff went from her home in Michigan to Medora, in Billings county, and paid the sheriff of that county the sum necessary to redeem. That was on February 24th, 1915. Then she learned that to redeem she must go to Amidon, the county seat of Slope county, which had been part of Billings county until a month previous. At Medora she sent a telegram toller mortgagees, offering them a bonus of over $500 for an assignment of their sale certificate, and they made no answer, because they had made a conditional contract to transfer the land to another party.- Then, on February 26th, she went to Dickinson, consulted a lawyer, and had him make out redemption papers, and started in haste to Amidon by way of New England. At this place she was forced to wait until the morning of February 27th, 1915. Then she went to Amidon and quickly put her redemption papers and money into the hands of the sheriff. He accepted and retained the money, but declined to make to her a redemption certificate or deed, claiming that time to redeem expired on the day previous. She then commenced this action to redeem, and judgment was duly given in her favor by Judge Crawford.

The defendants appeal to this court, insisting on two points. The. first is that, as a condition of being allowed to redeem, the plaintiff should be required to pay them about $550 that she does not owe them, which point has no merits.

The second point is that the court is powerless to decree a redemption because it was a day too late. To redeem the plaintiff incurred a great expense. She risked her health and life.in driving over the cold drifting snows when her driver lost his way. She put her redemption money into the hands of two sheriffs in the best of good faith, but, by reason of accidents which she could not foresee or prevent, she got to the-last sheriff a few hours after the lapse of the year from the date when her mortgagees had caused her property to be sold to themselves for much less than its value. Now it would seem that if courts cannot give relief under such circumstances, it is time for the judges to go to bed and cover their heads in shame. The statute gives a mortgagee only a conditional right to become a purchaser of land at his own foreclosure sale. He must act fairly and in good faith, so as to avoid oppression and to take no advantage of his mortgagor through the forms of the law. He is entitled to only his money, with interest at the enormous rate of 12 per cent, even though he gets it a few days before or after the year of redemption. He has no right to avail himself of the law to get something for nothing, or to speculate on the misfortunes of his debtor.

To mitigate the asperities of the law and to grant relief against forfeitures, penalties, accidents, and mistakes, — this has always been the special function and the duty of courts of equity. This court is not disposed to give the pound of flesh, because it is so denominated in the bond. The judgment of the district court is highly commended; and it is affirmed. This is without prejudice to any claim the defendants may have for a vendor’s lien.