Maloney v. Finnegan ( 1887 )

Dickinson, J.

Demurrer to the complaint. The plaintiff shows title to the land in question derived by purchase at a mortgage foreclosure sale in December, 1885. It also appears that the defendant Andrew J. Finnegan is the assignee of a judgment recovered in a justice’s court against the mortgagor, subsequent to the recording of the mortgage, and subsequently docketed in the office of the clerk of the district court; that such judgment was in fact rendered without any jurisdiction having been acquired over the person of the judgment debtor, no summons having been served, and no return of any service having been made; that the judgment debtor had tendered full payment of the same, which had been refused; that Finnegan, having filed notice of his intention to redeem from the foreclosure sale, within the proper time for making such redemption, fraudulently produeed to the sheriff a certified copy of the docket of the judgment, paid to the sheriff the sum of money necessary to make redemption, and procured from the sheriff, and caused to be recorded, a certificate of such payment, and of the fact that Finnegan claimed “title to said premises in fee-simple under said redemption, and has exhibited to said sheriff satisfactory evidence of his title thereto, and of his right to redeem the same;” the certificate, however, setting forth no other facts. It is further, alleged that no affidavit was ever made nor produced to the sheriff showing the amount due, or claimed to be due, upon the judgment, and that Finnegan never had or claimed any right to redeem, except under that judgment. The prayer of the complaint is that the pretended redemption be adjudged void; that the defendant be barred from claiming any title or interest; and for general relief.

The action is in the nature of a suit in equity to remove a cloud upon title, and not one under the statute to determine adverse claims, and the question whether, upon the allegations of the complaint, the action can be maintained, must be determined upon the principles applicable to such suits. The certificate of redemption to remove which, as a cloud upon the title, is the principal object of the action, is claimed to have been invalid because it did not state, as required by statute, upon what claims such redemption was made, nor the amount claimed to be due upon the lien under which the redemption was in fact attempted to be made. These defects, however, are apparent on the face of the certificate itself, and there is no other instrument evidencing the attempted redemption. For that reason, unless we are to now depart from the rule which has hitherto prevailed in this state and generally in the American courts, such an instrument will be deemed not to be a cloud upon the title, and, in general, such an action as this will not lie to remove it. Weller v. City of St. Paul, 5 Minn. 70, (95;) Scribner v. Allen, 12 Minn. 85, (148;) Conkey v. Dike, 17 Minn. 434, (457, 463;) Baldwin v. Canfield, 26 Minn. 43, (1 N. W. Rep. 261;) Gilman v. Van Brunt, 29 Minn. 271, (13 N W. Rep. 125.) It is, perhaps, questionable whether the better reason is not in favor of a different or modified rule; but however this may be, the law is so well established by the great weight of authority, and the statutory action to determine adverse claims is so available a remedy in such eases, (whenever the action of ejectment will not lie,) that there seems to be no sufficient reason why we should not adhere to the rule which has been long settled by the decisions of this court, and in accordance with the generally prevailing doctrine.

It is further urged that the action is maintainable to set aside the judgment as a cloud upon the plaintiff’s title. But the judgment, being junior to the recording of the mortgage, was subject to it. The property having been sold upon the mortgage foreclosure, the judgment was available to affect this land only as it gave the judgment creditor a right to redeem from the foreclosure sale. The time within which that could be done had passed when this action was commenced; and, unless it appears that a redemption effectual to cloud the title had been made, there could be no reason for this plaintiff to ask relief with respect to the judgment. Of course, if the redemption certificate was void for reasons appearing upon its face, the fact that it might also be avoided for other defects, which could be shown only by extraneous evidence, would not affect the result of the prevailing rule of equity to which we have referred.

It is further urged that a remedy in the nature of an injunction to prevent a cloud upon the title may be had under the complaint. An action for such a purpose may be entertained; but it must appear that proceedings are contemplated or threatened on the part of the defendant which will cloud the title. It is not enough that the complaint show that such a course may be pursued. Sanders v. Village of Yonkers, 63 N. Y. 489. This complaint was probably not framed with a view to such relief, and it is wanting in averments showing a necessity for the preventive interference of the court. There is perhaps reason to infer from what has been done that further steps may be taken to cloud the title, but the complaint contains no averments upon the subject.

Order reversed.