Bukowski v. Travelers Insurance Co.

1 Reported in 264 N.W. 217. Certiorari to review an order of the district court granting an extension of the time within which to redeem from a real estate mortgage foreclosure sale. The proceeding was brought in the *Page 32 district court by summons and complaint, to which the defendant insurance company made answer. The land in question is a 200-acre tract of farm land in Lincoln county in this state. The plaintiff and her six children are the owners of the land, having inherited the same from the husband and father, who had died prior to 1926. The children, as far as appears, are all of age, and only the plaintiff and one daughter have been occupying the land. The mortgage in question was given by the plaintiff and the children on October 28, 1926, for the principal sum of $6,500. It was foreclosed in 1934. The foreclosure sale was had on March 26 of that year. The time for redemption would expire on March 26, 1935. The summons and complaint in the proceeding were served on March 19, 1935, and the matter came on for hearing before the court on April 6, 1935. The court, after the hearing, made an order extending the time for redemption until March 1, 1936, and the defendant brings the matter here for review on certiorari. There were two questions presented to the trial court: First, whether the court had jurisdiction to hear and determine the matter after the time for redemption from the mortgage sale had expired; and, second, whether the plaintiff had shown any equitable or other right for the relief asked. The moratorium act of 1935, c. 47, was passed on March 15, 1935, and under that act the application was in time and the court had jurisdiction. On the second question, we are unable to agree with the court that plaintiff was entitled to any relief upon the facts here shown. At the time of the foreclosure sale there had been material default under the mortgage ever since 1930. There was due unpaid interest amounting to $1,174.32. There was default in payment of taxes amounting to $1,377.69, which taxes the defendant mortgagee had paid. There were costs on the foreclosure amounting to $104.50. The mortgagee bid in the land for the total amount due and the costs, amounting in the aggregate to $9,156.51. The application for extension of time was presented to the court within the 30 days provided by L. 1935, c. 47, § 4. No effort had been made by the *Page 33 plaintiff, or anyone, to refinance the mortgage during the redemption year. Plaintiff had committed waste on the premises by removing therefrom some small buildings and some standing timber to an adjoining tract of land owned by plaintiff and her children. The reasonable inference is that plaintiff had concluded to abandon the mortgaged land. At the time of the hearing in April, 1935, the interest since the foreclosure and taxes would result in further charges against the land, which, added to the amount of the foreclosure, would aggregate approximately $10,000. The evidence as to the value of the land, on plaintiff's part, is her own testimony, where, in answer to a leading question, she placed the value at about $12,000. The question was: "According to your petition you say that the land is worth about $12,000. Is that about right? A. Yes." On cross-examination she was asked: "Q. Do you know anything about what lands are worth in your part of the country at this time, what they are offering them for sale for? A. I don't know. Q. At $12,000, that would make a value of $60 an acre for this farm. Is there a farm around the country there that you know of that you could sell for $60 an acre? A. No." On the part of the defendant there is the evidence of two competent witnesses, who had knowledge of the value of farm lands and of the value of this particular land and placed the value at about $7,800. There is no showing that there is any prospect or hope that refinancing or redemption can be made by this plaintiff. The court in its order provided that the plaintiff should pay three dollars all acre for the pasture land on the premises for the period from March 1, 1935, to March 1, 1936, and that she should deliver to the defendant two-fifths of all crops, including corn, raised on the land during 1935, with the provision that defendant was to pay two-fifths of the threshing bill for threshing the grain and two-fifths of the bill for shelling the corn. The pasture land at three dollars an acre is out of the case because plaintiff testified that there was no pasture on the land. At the time of the hearing, which was a few days before crops should be sown on the land, the only preparation for any crop for 1935 was a piece of plowing of about 30 *Page 34 acres. The plaintiff had no seed grain and no means to purchase seed unless she obtained a seed grain loan. The buildings on the place were deteriorating, and the land was not being properly tilled. In that situation it is clear that the defendant, under the most favorable circumstances, would receive practically nothing either for the rent or for any share of a crop on this land for the year 1935. The extension of the redemption period, in the situation here shown, could result only in adding further charges and encumbrances on the land in the way of taxes and interest, and in material loss to the defendant. There is no equity shown which would authorize the court to grant the extension. The plaintiff has filed no brief in the matter before this court and made no oral argument. The order of the court granting extension of time to redeem is reversed.