Carly v. Boner

Ames, 0. The facts in this case are undisputed as they are recited in the brief of counsel for the appellant, Pitman, as follows : “The Boners, husband and wife, mortgaged the husband’s real estate to Ball to secure their negotiable bond. The mortgage contained covenants in substance to the effect that they would seasonably pay all taxes levied on the land during the existence of the mortgage debt, and, in case of their default, the mortgagee might do so, and tack such payment to the mortgage debt. They neglected to pay any of these taxes, and allowed the mortgaged real estate to go to tax sale, at which the plaintiff Oarly became a purchaser, and thereupon brought this suit to foreclose his tax certificate, making the Boners and Ball defendants. The latter was served by publication, and never appeared in the cause. On February 26, 1900, a decree by default was given in the cause, and, six days thereafter, Ball indorsed, assigned and delivered the bond and mortgage to the appellant, Pitman. A sale was had, and the land struck off to Dunn. He paid the bid, and sale was confirmed. The Boners appealed to this court from the order of confirmation, but filed no brief, and, when the case was reached for submission, suggested their desire to redeem, and moved for the issuance of a satisfaction certificate. Pitman intervened and filed an objection to the granting of leave to redeem, unless allowed without prejudice to his mortgage, and he also asked leave to redeem under his mortgage. No specific action was ever taken on either of these applications, but this court prepared and filed a memorandum opinion, holding that the Boners were entitled to redeem from the sale, while Pitman was entitled to redeem from the taxes. On April 30, 1902, Alexander paid into the court below the amount of the bid, with [673] twelve per centum interest from the date of sale, as assignee and grantee of the Boners, pendente lite, and for a redemption from such sale. He never filed any pleading of any sort. No notice of such payment was given to Pit-man. However, Susan E. Boner, the wife, on March 1, 1902, filed a motion below in her own behalf for leave to redeem, but never paid any money into court. On May 3, 1902, Pitman filed in the court bélow objections to any redemption by either Boner or Alexander, unless it be done without prejudice to his mortgage, and on May 31, 1902, he also filed an application for leave to redeem, himself, and paid into court the amount necessary to pay the decree with interest and costs. At the January term, 1903, this court dismissed the appeal, and a mandate of such dismissal was filed in the court below, on February 27, 1903. Boner filed an answer to Pitman’s application below for leave to redeem, and all of said motions and said payment coming on to be heard together before Judge Westover, he held that the payment into court by said Alexander was a good and sufficient redemption from said taxes and from said sale, and was operative to free the land from the lien of said mortgage, and to transfer said lien to the surplus arising on said sale; and it is from this decision that this appeal is taken. Separate findings of fact and conclusions of law were made by the court, upon which the appeal is taken, and from which the foregoing condensation is made.” The foregoing decree is manifestly erroneous. The right of redemption of both the mortgagor and the mort-' gagee was established by the former judgment of this court. Redemption by the mortgagor or his grantee, Alexander, would discharge the decree of foreclosure, and the sale pursuant to it, and satisfy the lien for taxes. Unless it would have that effect it would have none at all. The consequence of such redemption would be that the land would remain subject to the lien of the mortgage in all respects as though the mortgagor had paid the taxes to the county treasurer at the time of their accrual. Re [674] demption by the mortgagee, or his assignee Pitman, would also discharge the decree of foreclosure and the sale pursuant to it, but a. lien for the redemption money and interest would subsist in favor of the holder of the mortgage for his protection in accordance with the covenants of the instrument. 1. Right of Redemption: Res Judicata. An interlocutory order entered on a former appeal of this case considered, and held not to be res judicata as to the rights of the parties to redeem land from a decree rendered in the action and sale made in pursuance thereof so as to become the law of the case. '2. -. The statutory right 'of redemption from sale differs essentially from the equity of redemption proper; it is usually self executing, and to enjoy the benefit thereof, no proceedings are ordinarily required to be had in the courts to make such right effective. This right or privilege is given by statute to the owner of the equity of redemption or his grantee. 3. Rights of Assignee of Mortgagee Not in Issue. Whether or not the redemption of real estate by the owner of the equity of redemption or his grantee from the decree and the sale made thereunder, as effectuated, is with or without prejudice to the rights of one claiming as the assignee of a mortgagee, is not determined. This question is not within the issues raised by the application to redeem, nor is it involved in the exercise of the statutory right of redemption from a decree and a sale of real estate made in pursuance thereof. It is recommended that the judgment of the district court be reversed and that the cause be remanded for further proceedings in conformity with law. Hastings and Oldham, CO., concur. By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and that the cause be remanded for further proceedings in conformity with law. Reversed.