Wagner v. Abraham's

168 N.W. 762, 40 S.D. 575

• Court: South Dakota Supreme Court
• Decided: September 3, 1918
• Docket: File No. 4355
• Status: Published

Opinion

POLLEY, J.

This is 'a suit in equity, brought in Tripp- county by plaintiff to redeem' a quarter section of land from mortgage foreclosure sale.

On 'tire 1st -day of October, 1910, the -owners' of the land in question -gave defendant their promissory note for the -sum of $1,200, payable on the 1st day -oif July, 1915. S'aid not bore interest at the rate of 6 per cent.’ per annum', which -interest was evidenced by coupon notes attached thereto’. The mortgage in question Was given to secure the payment of this note and interest. The note contained 'the following provisions.

“-This -note ltd draw 12 per .cent, interest per annum .after -default in- payment of -principal or interest.” .

The Coupon's provided for It'be payment of 12 per 'cent, interest after maturity. In the mortgage is found! the following provision:

“Provided1, however, that in case of'-default in -the payment of either interest, the -whole indebtedness secured by this indenture shall-'draw interest at. the fate of 12 per cent, per annum, according to the terms of this indenture. * * * The mortgagors agree that a failure to pay any of. .said -money, either principal-or interest, when due, or ai failure to pay the taxes' or to insure the 'buildings as> herein' -agreed, or a failure to comply wiith any of the foregoing conditions or agreementei shall pause the whole sum, bath! principal and interest, to .become diue and Collectible at once, and this mortgage may thereupon be foreclosed1 immediately by -action or by advertisement * * * foir the whole of said interest and costs.”

The mortgagors defaulted in the .páymient of the installment of interest that fell due on thceTst day of July, 1914, and;, on the 2.5th day of the following February, the mortgagee proceeded to1 foreclose said mortgage by 'advertisement. At the for-eidosure sale, the mortgagee bid in the mortgaged property for 'the full .amount then due, including principal, interest, an'd) costs. No attempt wa© marite to redeem' from1 said sale; but on the last 'day of the period' of redemption, appellant, having purchased) Ithe mortgagor’s equity in the land, undertook to extend* the period' of redemption- as provided far by -section 646, Go,dé of Civil Procedure. At the! time of the execution- of the note and mortgage, .said section contained the following 'provision:

“That if alt the expiration of one year from the date of sale the mortgagor or his successor in interest shall -pay all taxes due on the land)'and all interest d*ue under the provisions of the mortgage and- interest for -one year in advance, then 'the time of -redemption shall be extended' for one year. Such payment shall be evidenced by the certificate of the sheriff or holder of the certificate of sale duly -acknowledged, which' shall be recorded -in the office of the register of -deeds and such certificate, or the record thereof, or á certified of the record, -shall be conclusive proof of -such payment.”

In his attempt'to' extend ithe period ’of redemption, appellant paid all the taxes due on the land- at that time- and paid! the interest that had' accrued on the principal -prior to the -date of ithe foreclosure sale, at the rate of 12 per cent, per 'annum, paid 6 per cent, per annum on the principal -during the year of ■redemption, -but, by an oversight on the part of both -appellant and the -sheriff, -omitted to p'ay the interest on the principal fior the year of extension. The •sheriff issued to apelfamit his 'certificate to the effect that the amount necessary to extend the period of redemption as provided by section 646 had 'been paid. This certificate was recorded) as provided <by said 'section. The failure to pay interest on .-the principal for the 'year of extension was discovered by appellant, and, on the 25th day of April, 191Ó, he paid1 to the sheriff the amount of the interest on said sum- conputedi .alt 6 per cent, per .annum.

[1] The trial court held th'at as appellant did not, -within the year of redemption, pay to the sheriff the full amount necessary to secure the extension, -he could not -be allowed toi pay ifche balance at a later dlatel and denied the appellant the right to redeem. In- so -holding the -trial court twias in error. It will be noted itihat section 646 makes the sheriff's certificate “conclusive proof of such payment.” And “'suich payment” means the amount requisite -under the ■.provisions of the statute Ito extend the period of redemption. Under -tlais provision of the statute, if is the d'uty of the sheriff to compute -the interest and determine the -correct amount necessary to procure -the extension; and it is to the sheriff -and not to the redemiptio-ner .that the -holder of the sheriff’s 'certificate of sale must look for his -money. It 'would be a manifest injustice to the rdemptioner to permit the sheriff to -accept a certain sum asi sufficient to procure an extension and to issue the certificate 'mentioned1 in section 646, ■ and them, after the period of redemption and the right of securing .an extension had- expired, .hold that the amount paid -was too small, • and in that way deprive the mortgagor of his right to redeem. To da this would- 'work d fraud upon the redempfciomer. It was- to> prevent just such a situation as this that the provision making the sheriff’s certificate conclusive proof of payment was inserted1 into section 646. If the amount 'paid or tendered .by the tedemplbioner i's not, ini the judgment of the sheriff, sufficient to effect an extension, he should refuse to accept suich -sum -or to issue his certificate and give the redemptioner 'an opportunity to pay the correct amount before the time for redemption has expired.

[2] In this case, the appellant having paid the sheriff an amount believed to be sufficient to entitle him to an extension, and the sheriff having accepted the .same and .issued his certificate showing that such extension had been effected', he was- entitled' to the extension; but, inasmuch as appellant -is in a court of equity asking for equitable relief, it would ibe only just that he pay !to the respondents, of either of them, itihe amount necessary to redeem..

The judgment and order appealed from are reversed, and the cause is remanded to ¡the trial -court, with, -directions to that- court to ¡ascertain the correct amount necessary to effect 'a -redemption and to grant appellant the relief prayedl for in hi-s complaint.