Petters v. Charlson Estate , 69 N.D. 290 ( 1939 )

I dissent. In my opinion the order appealed from should be affirmed.

The enactment of chapter 161, Laws 1937, was an exercise by the state of its police power, to protect vital public interests, to promote public security, and to add to the general public convenience and welfare. This power was put forth by the state to meet what the lawmakers, almost unanimously,¹ determined to be a "great public need," and in aid of what "strong and preponderant opinion" held "to be greatly and immediately necessary to the public welfare." Noble State Bank v. Haskell, 219 U.S. 104, 55 L. ed. 112, 31 S. Ct. 186, 32 L.R.A. (N.S.) 1062, Ann. Cas. 1912A, 487.

Sections 6 and 7, chapter 161, Laws 1937, provide a remedy for extending the period of redemption. Redemption statutes are remedial in their nature (North Dakota Horse Cattle Co. v. Serumgard, 17 N.D. 466, 482, 117 N.W. 453, 29 L.R.A.(N.S.) 508, 138 Am. St. Rep. 717; Muller v. Harrison, 46 S.D. 295, 192 N.W. 750; Ft. Wayne Builders Supply Co. v. Pfeiffer, 60 Ind. App. 615, 111 N.E. 192, 195; 2 Lewis's Sutherland, Statutory Construction, 2d ed. § 596; 19 R.C.L. p. 638), and should be construed liberally, so as to accomplish the object, and effectuate the intention, of the lawmakers, by advancing and giving effect to the remedy they established. 2 Lewis's Sutherland, Statutory Construction, 2d ed. §§ 585, 596; 59 C.J. pp. 1106-1109.

The statute authorizes a district court, where due cause for so doing is established, to extend the statutory period of redemption "for such additional time as the court may deem just and equitable, but in no event beyond July 1, 1939." Chapter 161, § 6. If the original extension is for a period which expires prior to July 1, 1939, "upon the application of either party, prior to the expiration of the extended period as provided for in this act, and upon the presentation of evidence that the terms fixed by the court are no longer just and reasonable, the court may revise and alter said terms in such manner as the changed circumstances and conditions may require." Id. § 7.

The Supreme Court of the United States said of similar statute enacted in Minnesota: "Although the courts would have no authority to alter a statutory period of redemption, the legislation in question permits the courts to extend that period, within limits and upon equitable terms, thus providing a procedure and relief which are cognate to the historic exercise of the equitable jurisdiction." Home Bldg. L. Asso. v. Blaisdell, 290 U.S. 398, 447, 78 L. ed. 413, 433, 434, 54 S. Ct. 231, 88 A.L.R. 1481.

This court has said that chapter 161, Laws 1937, "broadened the equitable powers of the courts, and vested them with power to grant the relief therein provided for because of the existence of a public economic emergency. The courts were given power to extend periods of redemption that had not expired." First Nat. Bank v. Knauss, 68 N.D. 227, 277 N.W. 516, 518.

In this case application was made (April 9th, 1938) pursuant to notice for an extension of the period of redemption. After hearing, the trial court made findings of fact and concluded as a matter of law that the defendants were entitled to relief under the provisions of chapter 161, Laws 1937, and upon such findings and conclusions the court entered what is denominated an "Interlocutory Order" which provided:

"It is hereby ordered and decreed that the plaintiff, G.E. Petters, in this action be and hereby is denied an order for issuance of a sheriff's deed under its sheriff's certificate dated May 22d 1937 and it is hereby further

"Ordered and decreed that the defendant, the Charlson Estate, a corporation, its successors and assigns be and is hereby granted extension of time for redemption and that such period of redemption be and is hereby stayed until Twelve O'clock noon on the 1st day of March, 1939 and it is further

"Ordered and decreed that the sheriff and his successors in office are prohibited from executing a sheriff's deed to the aforesaid described premises on certificate on sale herein referred to during the said extended period of redemption without permission of this court, provided, however, that the plaintiff may apply to the court for a modification of this order if the said defendant, the Charlson Estate, its successors or assigns fail to make the payments hereinafter provided and it is further

"Ordered and decreed that in consideration for the granting of this extended period of redemption the defendant, the Charlson Estate, shall pay to the plaintiff or to his attorneys, Nestos Herigstad, the sum of Five Hundred Sixty Dollars ($560) which sum is to be paid in the following manner, to-wit: the sum of One Hundred Dollars ($100) on or before the 15th day of May, 1938 and the further sum of Four Hundred Sixty Dollars ($460) which sum is to be paid on or before the 1st day of November, 1938."

The order was not challenged. On the contrary, the plaintiff acquiesced in its provisions, and accepted and retained the first payment of $100 made by the defendants. The defendants failed to make the second payment of $460, which the order said was to be made on or before the first day of November, 1938. Thereupon, on November 4th, 1938, the plaintiff made ex parte application for an order directing the sheriff to issue a deed to plaintiff. Thereafter, on February 27th, 1939, pursuant to notice duly given and after hearing had, the trial court entered an order vacating the order of November 4th, 1938, and modified the order of April 9th, 1938, so as to extend the period of redemption to July 1, 1939, on the conditions that the defendants, on or before March 1, 1939, pay to the plaintiff the sum of $460, and on or before March 7, 1939, pay to the plaintiff the further sum of $105. It is undisputed that the defendants have complied fully with the order as thus modified: they tendered to the plaintiff the amounts of both payments at the times specified, and upon their tenders being refused they caused the moneys to be deposited to the credit of the plaintiff in conformity with law, and served notice of such deposit upon plaintiff. The majority opinion is predicated solely on the ground that the district court had lost jurisdiction, and was without power to make the order of February 27, 1939. I disagree with this holding.

The application made April 9, 1938, invoked the equitable powers of the district court. The statute fixed July 1, 1939, as the limit of any extended period of redemption. For reasons which to the court seemed "just and equitable" he extended the period of redemption to March 1, 1939. The last payment prescribed in the order was to be made on or before November 1, 1938. The order did not specify that if default were made in such payment the plaintiff should be entitled to deed thirty days after such default. On the contrary, the order prohibited the sheriff from giving a deed during the "said extended period of redemption without permission" of the court; and provided that the plaintiff might apply to the court for a modification of the order if the defendant failed to make the payments. This language negatives any intention on the part of the court that the extended period of redemption should ipso facto terminate on default in payment, or thirty days after such default. If the order were not complied with there would be no change so far as concerned the possession of the premises, unless application were made for a modification of the order and the application were granted. The court reserved the right to take further action. The court said in effect, "I retain jurisdiction until March 1, 1939." Under the statute the court might have extended the period of redemption to July 1, 1939, and thus retained jurisdiction to that time. There was no attack upon the terms of the order. There was no application for amendment or change. The plaintiff recognized its validity, and accepted benefits under it.

On this appeal we have not only the order of April 9, 1938, but we have the construction placed upon that order by the judge who made it. That construction, as I view it, is correct; but if the meaning of the order were doubtful, the doubt should be resolved in favor of the construction which the trial court placed upon its former order.

¹ In the Senate chapter 161, Laws 1937 was passed by a unanimous vote (Senate Journal, 1937, p. 274), and in the House of Representatives the measure was passed by a vote of 95 to 1. (House Journal, 1937, pp. 578, 579.)