Roberts v. Meighen

START, C. J. The complaint herein alleged these facts: On October 28, 1893, the plaintiff! and her husband, O. H. Roberts, executed a mortgage, which was recorded, upon a lot then occupied by them as their homestead, the title thereto being in the husband, to W. H. Randall and S. H. Holbert, to secure the payment of certain promissory notes therein described and executed by the husband alone. The mortgage and debt thereby secured were duly assigned to the defendant Martin Webber, who, upon default in the conditions of the mortgage, foreclosed it by action, and became the purchaser of the premises at the foreclosure sale, on January 25, 1896, for the sum of $432, the amount then due on the mortgage, with costs and attorney’s fees, which sale was duly confined January 31, 1896. No redemption from this sale was ever made by the husband or any other party, except as hereinafter stated. After such sale, and on January 28, 1896, the defendant Webber and wife and the plaintiff duly entered into a contract, by the terms whereof it was agreed that Webber and wife should, in case there was no redemption from the foreclosure sale, convey the premises to the plaintiff upon her paying to Webber the sum of $382.05, with interest at 10 per cent, per annum, with the option of paying one-half of the amount in cash on the expiration of the time allowed for redemption, and the balance in two years, with interest to be secured by a first mortgage on the premises. The plaintiff, as a part of such agreement, paid to Webber the amount of all costs, expenses and attorney’s fees on the foreclosure sale, leaving only the sum of $382.05 unpaid by her. The defendant Thomas J. Meighen duly recovered and docketed on January 16, 1897, in the county wherein the premises are situated, a judgment for $27.25 against the husband, C. H. Roberts, and on the same day duly filed a notice of his intention to redeem the premises from the foreclosure sale. Thereupon, and on January 25, 1897, the plaintiff duly tendered to the defendant Meighen the full amount then due on his judgment, which was refused; but the plaintiff ever since has been, and still is, ready to pay to him the amount so tendered. Thereafter, and on February 6, 1897, he attempted to redeem the premises from the foreclosure sale by virtue of his judgment, and [277] paid to the sheriff' of the proper county for such purpose the sum of |481.25, who executed to him the usual certificate of redemption which has been recorded. The plaintiff is, and has been at all times since January 31, 1897, ready to pay the sum of $382.05, with interest, in accordance with the terms of her contract, to the defendants, or either of them, as the court may direct. The complaint prayed for both specific and general relief. The defendant Meighen interposed a general demurrer to. the complaint, and he appealed from the order of the court overruling it. The defendant’s contention in support of his demurrer is that the plaintiff, in making tender of payment of his judgment, was a mere volunteer, — an officious intermeddler, with no interest to protect by discharging the lien of the judgment. If such be the case, the complaint does not state a cause of action. But it is otherwise if she had any interest to protect by payment of the judgment, no matter how small the interest, or whether she had some other remedy for its protection. Thus, in the case of Kincaid v. School District, 11 Me. 188, it was held that a tender by an inhabitant of a school district to one having a claim against it was valid, though not authorized by the district. It may be conceded for the purposes of this case that, if the wife has no pecuniary interest to protect thereby, she is a mere volunteer if she pays or tenders payment of her husband’s debts. The defendant admits, as it must, that the plaintiff had a right to redeem from the foreclosure sale. Williams v. Stewart, 25 Minn. 516. Stated briefly, the defendant’s claim is that the plaintiff, in making the tender, was a mere volunteer, because the judgment was not a lien on her inchoate interest in the land (Dayton v. Corser, 51 Minn. 406, 53 N. W. 717); that Webber, the purchaser at the foreclosure sale, could not pay the judgment, because the lien thereof was subordinate to his own; that he could not give to plaintiff any greater rights than he possessed and that the plaintiff’s only remedy was to redeem from the sale within the year. It is true the judgment was not a lien on her inchoate interest in the land; that the purchaser at the foreclosure sale could not confer upon her the right to pay the judgment after her interest in [278] the land had ceased, and that she had a right to redeem in order to protect her interest. Such a remedy, however, in view of the nature of her interest in the land, was impracticable, for by redeeming she would not only pay her husband’s debt, but annul the sale. Then, to adjust the equities between her and her husband, and to secure contribution from him and a lien on the land for the amount thereof, she would probably be compelled to resort to litigation, with its attending vexations, costs and delays. She therefore entered into an agreement with the purchaser whereby she could protect her interest, and obtain not only additional time in which to pay the amount necessary to be paid for that purpose, but her husband’s interest in the land as indemnity for such payment. After this agreement was made, there was but one contingency which could defeat her original interest in the land; that was a redemption by a lien creditor, because, if her husband or his grantee redeemed, it would annul the sale, and her interest would then stand precisely as it did before the mortgage was given. There was no such creditor at the time she made the agreement and paid the costs and attorney’s fees on the sale; but as the time in which a redemption must have been made, if at all, was about to expire, the judgment was docketed, and the notice of intention to redeem was filed by the defendant. This directly menaced her original interest in the land, for, if the defendant redeemed, he would acquire thereby, not only the husband’s title, but her interest in the land. The simple, direct, practical and comparatively inexpensive way to protect her interest was to pay the defendant’s judgment, instead of redeeming, and she was not a mere volunteer in making the tender. The plaintiff having the right to make the tender and having duly made it, this case falls within the doctrine of the case of Rother v. Monahan, 60 Minn. 186, 62 N. W. 263. The act of the defendant in attempting to use the judgment after the tender was made was in his own wrong, and equity will right the wrong. The facts alleged in the complaint do not show that the defendant Meighen is, as claimed, a purchaser in good faith without notice; nor does it appear therefrom that the plaintiff is estopped from asserting the invalidity of the defendant’s attempted redemption. Order affirmed.