(dissenting).
When the opinion in this case came to the writer the following dissent was prepared and submitted. Subsequently, pursuant to what seems to be the usual practice, the latter part of the main opinion was rewritten and enlarged. That the controversy may be brought to an end, the dissent is filed without alteration.
I dissent from the propositions that Sutton should not be relieved from the consequences of failing to pay the mortgage registry tax and that plaintiff is entitled to equitable relief.
An excusable mistake whereby one loses a valuable legal right gives rise to an equity, not only as against the person responsible for it or privy thereto, but also against anyone who will not be injured by its correction. Lane v. Holmes, 55 Minn. 379, 57 N. W. 132, 43 Am. St. 508. Orr would not, in legal contemplation be injured by judicial recognition of Sutton’s redemption; for the sole purpose of the statute allowing a creditor to redeem is that his claim may be saved and paid, which would be accomplished in this case if plaintiffs’ right to question Sutton’s redemption were denied. The *51statute does not contemplate speculation in the mortgaged property with the view of obtaining title thereto, except as such is necessarily involved in efforts of creditors to save their claims and as incident to the end that the property shall go as far as possible towards payment of the mortgagor’s debts. Sprague v. Martin, 29 Minn. 226, 13 N. W. 34. Hence neither Orr’s nor Sutton’s acts should be regarded as those of an owner seeking to protect his specific rights in property as such, and their respective redemptions should be considered solely with reference to their status as creditors attempting to save their claims, which, if valid, are entitled to due protection, regardless of amount. Aside from fraud, the desire of either to secure the land itself is immaterial, either for or against him, and the equities of each, if any, should rest in and be weighed by their standing as creditors. Thus tested, the circumstances disclosed on the trial presented no equity in Orr needing protection, for his rights as a creditor were conserved by Sutton’s redemption; whereas Sutton had an equity arising from the fact that he would lose at least the security for his debt unless the mistake, whereby his attempt to redeem fell short of legal requirements, was corrected. That this mistake, though one of law, was excusable, seems unquestionable; for if Sutton was not equitably justified in accepting the prior practical construction placed upon the statute by the officers of the state, including the attorney general, it is difficult to conceive of such justification for any act attributable to an erroneous conception of the law. In a proper case, however, one may be relieved of the effect of a mistake of law. See Benson v. Markoe, 37 Minn. 30, 34, 33 N. W. 38, 5 Am. St. 816; Gerdine v. Menage, 41 Minn. 417, 421, 43 N. W. 91; Lane v. Holmes, supra; Truesdale v. Sidle, 65 Minn. 315, 67 N. W. 1004; Dodge v. Kennedy, 93 Mich. 547, 53 N. W. 795; Pomeroy, Eq. Jur. (3d Ed.) 839, 849. The rule established by these authorities is, as reiterated in Forest Lake State Bank v. Ekstrand, 112 Minn. 412, 416, 128 N. W. 455, that equity will relieve from a mistake of law where one party by availing himself thereof will secure without consideration an unjust advantage of the other party, who is blameless in the premises. Certainly it seems that Sutton’s failure to pay the 50-eent registration tax comes within the rule, wherefore *52his redemption should be recognized and adjudicated effective, thereby preventing grave consequences as the result of trivial, and in no sense wilful, fault.
But assuming this position untenable, what is plaintiff’s standing to seek equitable relief ? What is he other than an intermeddler seeking speculative gain through his own wrong, thus attempting to pervert the redemption law ? Legally he had a lien when he redeemed, for, under our decisions, the tender did not destroy that; but it was a naked, technical lien, existing merely because his wrong had not yet been remedied by wiping his judgment from the records. After the tender, or at least so long as it continued to be operative, no remedial right thereon remained against Sauntry except as to the money tendered. Rother v. Monahan, 60 Minn. 186, 188, 62 N. W. 263. Only as a creditor with a vested right to have the property applied to the satisfaction of his debt did he have any right to redeem. Sprague v. Martin, 29 Minn. 226, 232, 13 N. W. 34. After the tender, therefore, he had no better standing to redeem than one without a lien, who, as declared in Nelson v. Rogers, 65 Minn. 246, 248, 68 N. W. 18, has no such specific interest in the property as to constitute him a proper redemptioner under the statute. Such also is the rule declared applicable in the present case, so that “any further attempt to proceed against the land in question after such tender must be considered wrongfulbut nevertheless Orr’s redemption is upheld because Torinus, the purchaser, accepted the money. In short, it is held, in effect, that one having no right to redeem may do so and thus acquire title to the land, if no one entitled to object does 'so. Upon the same reasoning it would seem that the necessity of a lien or some specific interest in the property as the basis of the right to redeem could be waived, which certainly is not the law as heretofore understood by this court. See Todd v. Johnson, 50 Minn. 310, 313, 52 N. W. 864. It is difficult to comprehend how this holding consists with the nature of the creditor’s rights under the statute, after the year for redemption by the mortgagor has expired, such being the equitable substitute for his prior right to subject the property to execution (Powers v. Sherry, 115 Minn. 290, 294, 132 N. W. 210), or with the character of the relief sought, the same being es*53sentially equitable (Mathews v. Lightner, 85 Minn. 333, 336, 88 N. W. 992, 89 Am. St. 558). To grant plaintiff any relief in the premises is not only to place a premium upon wrongful speculation by creditors, but also to forget that equity should not be oblivious to the stain on plaintiff’s hands, nor need a complaining defendant to close its doors to one who comes limping upon a crutch of wrong. Had plaintiff alleged the facts regarding the tender his complaint would unquestionably have been demurrable, and he should not be held to be in any better position with the proofs in to the same effect.
But can it properly be said that none of the defendants are in position to object to plaintiff’s redemption? Assuming that Sutton, as a subsequent lienholder, was not, and accepting as sufficient predicate for an estoppel or waiver, the. statement of the court that “there is nothing in the record to suggest that Torinus did not have full knowledge of the tender when he accepted and receipted for the money” paid on plaintiff’s redemption, the question of Sauntry’s right still remains. Under the reasoning of Rother v. Monahan, supra, he could have maintained an action, after tender to restrain plaintiff from attempting to enforce the judgment for any purpose, and must have prevailed; from which it would seem to follow that he could resist its enforcement by objection to redemption. The only escape from this conclusion lies in the determination of the court, following Willard v. Finnegan, 42 Minn. 476, 44 N. W. 985, 8 L.R.A. 50, that after Sauntry’s year of redemption expired he had no interest in the property to protect and was without right to question Orr’s redemption or to take steps necessary to insure redemption by Sutton. Here it is the court seems to lose sight of Sauntry’s rights, both legal and equitable. The mortgagor’s rights were summarily disposed of in Willard v. Finnegan, supra, without discussion and seemingly with little consideration, whereas under the rule of Rother v. Monahan, supra, he “must be presumed to have had some interest in preventing such a redemption.” This presumption should be conclusive for the reason, if no other, that the mortgagor is necessarily concerned in.carrying out the policy of the law, declared in Martin v. Sprague, 29 Minn. 53, 56, 11 N. W. 143, 145, “to save the property of debtors from being sacrificed, and to enable debtors *54to retain their property; or, if they shall fail to do so, then to secure its application, so far as may be, to the payment of the demands of creditors.” To effect the latter purpose his interest extends beyond the expiration of his redemption period; for to make the two coterminous would be to deny him the right to seek the accomplishment of that end. As was said in the Bother case, it well may be that, though he has lost the right to redeem, he may have some advantageous arrangement with a particular creditor looking to the saving of the property or valuable rights therein, or else, it may be added, he may require protection from the effect of prior covenants. See Allis v. Foley, 126 Minn. 14, 147 N. W. 670. It may be that he can neither redeem nor make any advantageous arrangement during the year, but can thereafter secure valuable concessions from one creditor, though not from another. Should he then be deprived of the right, by tender, to eliminate the latter from the succession of re-demptioners, thus removing an obstacle to the effectuation of his plans % Having an absolute right to make the tender, he should be accorded the unconditional right to avail himself of the benefit thereof, without the expense, delay, annoyance and uncertainty incident to litigation of an issue as to whether he will in fact be benefited, especially as against the creditor who has wrongfully refused such tender. Though he cannot, after expiration of his redemption period, be regarded as having any title whatever to the property, as former owner thereof he should be dealt with as leniently as possible and afforded every opportunity consistent with the rights of others to save what he can out of it, both for his own and his family’s benefit. These considerations should certainly outweigh the claims of one asserting merely technical rights based upon a claim for money of which he will not be deprived by their denial.
The injustice, departure from the settled policy of the redemption law, and danger involved in the rule established by the majority opinion would be clearer if Sutton’s mortgage had secured $50,000 instead of $50. Yet the court’s reasoning would require the same holding in such case, including denial of the right of redemption to one who, under very recent decisions, unquestionably had an equitable lien upon the property and was thus strictly within the statutory. *55designation of those entitled to redeem, and who, in matter of procedure, was generally, if not technically, within the law.
Finally, neither Sutton nor Sauntry should be deprived of any right here claimed because of Torinus’ acceptance of the money paid on Orr’s redemption.
I think the order should be reversed.