Swearingen v. Roberts

Lake, Ch. L,

dissenting.

By the stipulation of counsel but a single question is presented for our consideration, viz., whether the plaintiff in error could redeem his land from the sale made pursuant to.the decree of the district court by paying the purchase price, together with interest thereon at the rate of 12 per cent, per annum and costs? On the part of the defendant in error it is claimed that he could only redeem by paying the whole amount of the decree, without reference to the price for which the land was sold, and in addition to this 12 per cent, interest to the purchaser on the amount of his bid.

- At first I was strongly inclined to adopt the view of the plaintiff in error, but further reflection leads me to the conclusion that it is not the proper one to take. The right of redemption is claimed under the following provision of the statute: “ That the owners of any real estate against which any decree of foreclosure has been rendered in any court of record, or any real estate levied upon to satisfy any- 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 in-*339Merest 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 the same shall pay to the said purchaser 12 per cent, interest on the amount of the purchase price from the time of the sale to the date of redemption, or deposit the same with the clerk of the court where the decree or judgment was rendered.” Laws 1875, p. 57; Comp St. 595, § 497.

. On a careful examination of this provision I think it will be conceded that it is somewhat peculiar, differing essentially from those ordinarily made for the redemption of lands from sales merely under decrees or executions. The privilege which it gives to the debtor is not to redeem his land from the sale alone, but from the “decree or levy.” This, of course, can only be done in the mode directed, which is “by paying into court the amount of such decree or judgment, together with all interest and costs;” and, if sale has been made to a person other than the plaintiff or judgment creditor, there must also be paid to the purchaser “ 12 per cent, interest on the amount of the purchase price from the date of the sale to the date of the redemption, ” or deposited for him “ with the clerk of the court ” in which the decree or judgment was rendered. The first clause of this provision is plain enough. No doubt seems to be entertained as to its meaning. It confers no right whatever, except upon the precedent condition of payment óf the whole amount for which the debtor is liable under the' judgment or decree, including interest and costs. This much is given to the judgment creditor in all cases of redemption under this law.

The precise meaning of the last clause may be somewhat obscure, but I think a little reflection will make it apparent that it is merely an additional requirement to the right to. redeem in those cases wherein a stranger to the record becomes the successful bidder. It is evidently *340based upon the hypothesis that sheriffs do their duty in making such sales, in this, that they exact prompt payment of the amount of the accepted bid. If this be. done, and the purchase is avoided by redemption, it is but just, and so the legislature probably thought, to remunerate the bidder for his trouble, and the loss of the use of his money while idle in the sheriff’s hands, by giving him interest as here provided. On the setting aside of the-sale the amount-of his bid would, of course, be returned to him by the officer holding it.

The construction sought by the plaintiff in error, that he was entitled to redeem from the sale merely by paying “the purchase price and interest from the date of sale to-the date of redemption,” is not justified by any words found in the provision. It nowhere says that he shall pay the “purchase price” to the purchaser, or deposit the-same with the clerk of the court for his use. “The purchase price,” before confirmation, is in the hands of the officer making the sale, or should be, and its final disposition depends wholly upon whether the sale shall be confirmed or set aside. It cannot be paid to the judgment or execution creditor except upon the event of confirmation. But if the sale be vacated, it is as if it had never been, and the money paid to the sheriff by the purchaser is to be returned to him. I am certainly aware of no rule by which, in the event of such sale being set aside, that purchase money thus held could be paid over, to the creditor. And the rule must be the same whether the sale be vacated by order of the court reviewing it, or as the result of redemption under the law. If the sale fail from either cause, surely nothing can come of it to benefit the creditor.

Giving to the language of the section its ordinary meaning, which is a rule to be observed in the construction of statutes, is it not clear that the privilege which it gives is fully expressed by the first clause ? That privilege, as *341before shown, is to redeem the land from “the decree or levy,” which can b&done only “by paying into court the amount” due upon the “decree or judgment, together with all interest and costs.” The second clause confers no right whatever upon the debtor, but simply imposes upon him an additional duty; it requires that “the person so redeeming ” shall pay, etc. The term “ so redeeming” is one of reference, and relates back unquestionably to that part of the preceding clause which points out the mode by which a redemption may be effected, viz., “by paying into court the amount of such decree or judgment,” etc.

After bestowing much reflection upon the statute I see no reason to doubt the entire soundness of the construction given by the district judge, and am of opinion •that it should be affirmed.