Fox v. Nelson

Bruce, J. (after stating the facts as above). The questions' to be determined in this case are: (1) Whether the quitclaim deed from E. W. Mattern and-wife-was in fact a mortgage; (2) if so, whether one who accepts a quitclaim deed can, for the purpose of redemption, claim it to be a mortgage; (3) whether the defendant had slept on his rights and was precluded from redeeming; (4) whether the failure of the defendant to file a notice of redemption, as provided in § 7142, Rev. Codes 1905, § 7756, Compiled Laws of 1913, extended the time in which' the plaintiff, or a second redemptioner, was entitled to redeem beyond the year of the time of redemption, if the plaintiff occupied the position of a redemptioner instead of an owner; (5) whether, under the proof, the Advance Thresher Company mortgage, purchased by the defendant subsequent to his redemption, had not been paid prior to such purchase by the original mortgagor, Mat-tern; (6) whether, by failing to file the notice of the assignment of the Advance Thresher Company mortgage to him, the defendant did not forfeit his right to demand the payment thereof at the time of the attempted' redemption by the plaintiff. We must start with the promise that the North Dakota redemption statute “is remedial in its nature, and is intended, not only for the benefit of creditors holding liens subsequent to a lien in process of foreclosure, but more particularly for the purpose of making the property of the debtor pay as many of his debts as it can be made to pay, and to prevent its sacrifice, and should be liberally construed.” North Dakota Horse & Cattle Co. v. Serumgard, 17 N. D. 466, 29 L.R.A.(N.S.) 508, 138 Am. St. Rep. 717, 117 N. W. 453; 27 Cyc. 1800. Also that mortgaged real estate which is transferred to a subsequent purchaser with recorded notice of encumbrances becomes “in equity a primary fund for the payment of the mortgage debt.” Colonial & [594] U. S. Mortg. Co. v. Flemington, 14 N. D. 181, 116 Am. St. Rep. 670, 103 N. W. 929; Paine v. Dodds, 14 N. D. 189, 116 Am. St. Rep. 674, 103 N. W. 931. The rule has now become an established rule of property in this state, and should not be abrogated by this court. It cannot be claimed to be other than just and equitable. The decisions of this court are both retroactive and prospective in their nature, and any alteration or change of the rule on our part might greatly endanger titles and legitimate property interests. Such being the case, and, as the plaintiff, Fox, was in fact a lien holder and entitled to the rights of such, this right included the statutory right of redemption from a prior redemptioner within sixty days, even though this period extended beyond a year from the time of the original foreclosure. We say this because it is undisputed that the ’ quitclaim deed in this case was in fact a mortgage, and the law seems to be well established that the rights of the holder of a deed which is in fact a mortgage are as far as the right to redeem is concerned, the same as if the instrument under which he claims were in express terms a mortgage, and that no prior adjudication of such fact is necessary. Scheibel v. Anderson, 77 Minn. 54, 77 Am. St. Rep. 664, 79 N. W. 594. We must remember that the statute in regard to redemptions is not only for the benefit of the lien holder, but also for the benefit of the mortgagor, and that the policy of the law' and of the statute seems to be to give every encouragement to subsequent lien holders to redeem, and this as much for the benefit of the debtor as of the lien holder. Under the provisions of §§ 7755 and 7756 of the Compiled Laws of 1913, §§ 7141 and 7142, Rev. Codes 1905, the plaintiff was not required to redeem from the defendant, Nelson, within the year, since Nelson had not within said yearly period perfected his redemption by filing the duplicate notice thereof with the register of deeds, as required by § 7756 of the Compiled Laws of 1913. “The notice to be filed by a redemptioner,” says the supreme court of South Dakota in construing a similar statute, “is for the benefit of the person filing it, as its filing is the beginning of a brief period of limitation of which he may take advantage as against other redemptioners. But under this statute the redemption and the filing of the notice of redemption are distinct acts. As against the person from [595] whom redemption is made, no notice is necessary. The notice is only operative and necessary as against other redemptioners, and their right to redeem can be barred only by filing the notice of redemption as required by the statute. The failure to file the notice of redemption does not render the redemption itself irregular or illegal. It merely 'leaves the rights of other redemptioners unaffected. It does not extend the limitations of sixty days, because that period begins only when the notice is filed.” Spackman v. Gross, 25 S. D. 244, 126 N. W. 389. This rule is subject, of course, to the further condition that, as the first redemption, although irregular, was made within the year, the period of redemption could only be extended sixty days from the end of the year, and the plaintiff would be required to redeem within that period or not at all. We can, indeed, see no foundation for the contention that whether the notice is filed or not, the redemption of a subsequent lien holder must be made within the year from the original foreclosure. The statute expressly provides that “if the property is so redeemed, by a redemptioner another redemptioner may, even after the expiration of one year from the day of sale, redeem from such last redemptioner; provided, the redemption is made within sixty days after such last redemption.” [Comp. Laws 1913, § YY55.] We have before us merely a redemptioner who is allowed by the grace of the statute to redeem. He is given a brief statute of limitations as against still other redemptioners, and such persons are given a still further period in which to redeem, and this,.not for the benefit of the redemptioners merely, but of the original debtor, and in furtherance of the theory that the real estate shall be looked upbn as a trust fund for the payment of the mortgagor’s debts. Nor is there any merit in the contention that the plaintiff is estopped from redeeming because, prior to the subsequent redemption by the defendant, he may have said that he had no intention of redeeming. Even if he made such a statement, the original mortgagor and debtor should not be deprived in equity of his accruing advantage from having the notice filed and subsequent lien holders given the power and the opportunity to resort to and extend the uses of the mortgaged property, and to thus relieve him of his personal indebtedness and liability. So, too, the defendant in this case is not in any way prejudiced in so far as his claim or security is concerned* [596] but merely, if at all, in Ms rights as a speculator, and in such a court of equity is but little concerned. If he receives the amount of his claim with statutory 12 per cent interest, it is all that he can reasonably demand. He is a redemptioner, and not a purchaser, and he is not supposed to be a speculator. Styles v. Dickey, 22 N. D. 515, 134 N. W. 702. It is also to be noticed that no objection was made by the defendant, Nelson, to the redemption by the plaintiff, Fox, on the ground that it was too late, but merely on the ground that Fox refused to pay the amount of the alleged lien of the Advance Thresher Company mortgage. In his answer in the case before us the defendant states that all he wants is the money due him, and this statement is confirmed by counsel in Ms brief. “Further answering the complaint,” the answer says, “defendant states that he has no objection to the plaintiff redeeming, and that he is perfectly willing that he do so, provided that he shall pay to the defendant all sums due to him by the said Mattern, and necessary to make such redemption.” We, too, are well satisfied that whether the Thresher Company mortgage had been paid or not (and from our perusal of the evidence we think it was), it was not incumbent upon the plaintiff to pay the same at the time of his attempted redemption. At that time, and as far as we know up to the present time, no duplicate notice of redemption was or has been filed by the defendant, Nelson. Section 7142, Eev. Codes 1905, being § 7756, Compiled Laws of 1913, provides that “written notice of redemption must be given to the sheriff and a duplicate filed with the register of deeds of the county, and if any taxes or assessments are paid by the redemptioner or if he has or acquires any lien other than that upon which the redemption is made, notice thereof must in like manner be given to the sheriff and filed with the register of deeds; and if such notice is not filed, the property may he redeemed' without paying such tax, assessment or lien.” It will be noticed that in the latter part of the section we have just quoted there is an express provision that where no such notice is filed the payment of no other than the original debt sought to be redeemed from is necessary. It is also to be noticed that the provision relating to notice of the acquirement of subsequent liens is separate and distinct from the notice of redemption which must be filed in order to effect a regular statutory redemption. We may also add that after a careful examination of the [597] record we come to the conclusion that the Advance Thresher Company mortgage was in fact paid. The witness Mattern, the original mortgagor, testified positively to this fact, and the defendant, Nelson, though in the position of one who is seeking to assert a lien, singularly fails in disproving the fact. Though a business man, maintaining a machinery business and a retail store, he is unable to produce any records or books except the notes on which he claims to have indorsed all of the payments, but admits himself of having failed to indorse at least one payment. He admits that the original mortgagor, Mattern, knew of the facts and of the payments, and that at any rate, if he, Mattern, had kept any books, they would have been conclusive of the question. He admits that collections were made, not only by himself, but by the agents of the threshing machine company. He admits that numerous threshing machine accounts against farmers were turned over to him for collection. Receipts for payments to nearly half' of the amount of the mortgage were produced over what he claims were paid thereon. Added to all this is the fact that he failed to file a duplicate notice of the redemption with the register of deeds of the subsequent lien which he claims to have purchased, and which he now claims not to have been fully paid. The judgment of the District Court is reversed, and the cause is remanded with directions to enter judgment allowing the plaintiff to redeem said premises within sixty days from the filing of the remittitur in the District Court, upon the paying to the clerk of the 'District Court for the defendant the sum of $2,300, less taxable costs herein on trial and on appeal, which amount was tendered to the defendant by the said plaintiff on the 10th day of December, 1912, and the judgment and decree herein will further satisfy and cancel of record the mortgage and notes of the said Mattern to the said Advance Thresher Company.