Swearingen v. Roberts

Maxwell, J. The question to be determined in this case is, whether or not the owner of real estate, which has been sold to one not the plaintiff in the action under a decree of foreclosure, must, in order to redeem the same, pay or tender the entire amount of the decree, with interest and costs, with 12 per cent. additional interest on the purchase money, or only the amount paid by the purchaser, with 12 percent, interest thereon. The question depends upon the construction to be given to section 497a of the code, (Comp, St., 595,) which is as follows: “The owners of any real estate against which a decree of foreclosure has been rendered in any court of record, or any real estate levied upon to satisfy a judgment or decree of any kind, may redeem the same from the lien of such decree or levy at any time before the sale of the same shall be confirmed by a court of competent jurisdiction, by paying into court the amount of such decree or judgment, together with all interest and costs; and in case the said real estate has been sold to any person, not a party plaintiff to the suit, the person so redeeming shall pay to such purchaser 12 per cent, interest on the • amount of the purchase price from the date of sale to the date of redemption, or deposit the same with the clerk of the court where the decree or judgment was rendered.” [335] The word “redeem” is defined by Webster “to purchase back; to regain possession by payment of a stipulated price; to re-purchase.” According to the strict rules of the common law, unless the mortgagor or his heirs, by payment of the mortgage money and interest, at the time and place appointed, strictly complied with the conditions upon the fulfilment of which it was stipulated that he should re-enter on his estate, it became the property of the mortgagee, even though it grfeatly exceeded in value the amount of the loan. Littleton says: “If a feoffment be made upon such condition, that, if the feoffor pay to the feoffee at a certain day * * * ¿£40 of money, then the feoffor may re-enter. If he doth not pay, then the land, which is but in pledge upon condition for the payment of the money, is taken away from him forever and so dead to him, upon condition.” Section 310. Courts of equity, however, from an early period, have held that until foreclosure the mortgagor, if he applied within reasonable time, and offered to pay the amount due, and costs, might redeem the forfeited estate. This right to redeem, as it could be enforced only in a court of equity, was called the equity of redemption. In Howard v. Harris, 1 Vern., 190, decided in 1683, it was held that no agreement in a mortgage could make it irredeemable ; and the right of redemption attaches to every mortgage. Under the English chancery practice, proceedings to foreclose a mortgage were not for a decree directing a sale of the mortgaged premises to satisfy the amount found due, but directing the defendant to pay the amount due on the mortgage by a day to be named, on the failure of. which his right to redeem would be barred. But until the time fixed in the decree had elapsed, the owner of the equity of redemption could pay the .amount due on the mortgage and redeem. Our statute provides for a sale of the mortgaged premises, the proceeds of the sale to be applied to the satisfaction of the decree. The right [336] of redemption continues up to the time of the confirmation of the sale. ■ Our statute seems to provide for two classes of purchasers : First, if the premises are purchased by the plaintiff in the action, the owner of the equity of redemption may redeem by paying into court the amount of the-decree, together with all interest and costs; second, when any person not the plaintiff is the purchaser, the party redeeming must pay the purchaser the amount of th& purchase money, together with 12 per cent, interest thereon from the date of the sale to the time of redemption, or pay the same into court. This transaction is entirely between the owner of the equity of redemption and the purchaser. If the owner redeems, the purchaser receives 12 per. cent, interest for the use of his money, the owner of the equity retains the real estate, and the creditor receives the amount of money for which the premises were sold. It is very strenuously insisted that in any case a party redeeming must pay the amount of the decree, interest, and costs; and if the premises are sold to any person not the plaintiff in the action he must, in addition, pay the. purchaser 12 per cent, interest on the purchase money. There is no doubt the language used in the section above quoted, if taken by itself, will admit of that construction. But is that the necessary or proper construction ? We think not. In construing remedial statutes there are. three points to be considered: the old law, the mischief, and the remedy. And it is the duty of courts so to construe the act as to suppress the mischief and advance the remedy, 1 Bl. Comm.,87. At the time the act under consideration was passed, the owner of the equity of redemption had no right to redeem after the sale. The design of the law, therefore, evidently was to extend the right of redemption to the time of confirmation. Prior to its passage the owner of the [337] equity of redemption, at any time before the sale, could redeem by paying the amount of the decree, interest, and costs. The statute continues that right in force upon the same conditions, if the plaintiff is the purchaser, up to the date of confirmation. There would seem to be reason in this. The plaintiff has a claim for a definite sum, which is a lien upon the real estate, but is usually less than its value. The estate, therefore, in most ifistanees may be presumed to be of as much or greater value than the amount of the debt; therefore, if the owner of the equity of redemption wishes to redeem he must do so from the decree. But how can this principle apply to the case of a purchaser other than the plaintiff in the action ? All that the plaintiff can obtain in such case is the amount of the purchase money; and upon its payment, if the sale is confirmed, his lien is absolutely divested, and he has no further claim against the estate. The creditor does not seem to. have any interest in the' matter, as it can make no difference to him whether the-.purchase money is derived from the purchaser or the debtor. The object of the statute is to grant relief to the debtor, and the legislature certainly did not intend to place hindrancesin the way of redemption by imposingupon the debtor the payment of 12 per cent, to the purchaser in addition to the interest on the decree. It is an established rule, in the interpretation of a statute, that the intention of the law-givers is to be deduced from the whole statute taken and compared together, “ The real intention, when accurately ascertained, will always prevail over the literal sense of terms.. When the expression of a statute is special or particular, but the reason is general, the expression should be deemed general, * * * and the reason and intention of the law-givers will govern the strict letter of the law, when the latter would lead to palpable in- ■ justice, contradiction, and absurdity." 1 Kent Com. 462. [338] The above is peculiarly applicable to this case; the evident intention of the statute being to allow the party redeeming from one not the plaintiff in the action, to do -so. by paying the purchase money and 12 per cent, -interest. The question whether the rate of interest to which the purchaser is entitled is affected by the usury laws of 1879, is not involved in this ease, and will not be considered. The judgment is therefore reversed, and the cause rémanded for further proceedings, Reversed and Remanded.