Way v. Hill , 41 S.D. 437 ( 1919 )

SMITH, P. J.

Appeal fromi an order overruling demurrer to plaintiff's complaint on the ground that the complaint does not state facts sufficient to constitute a cause of action, or to entitle plaintiff to the relief demanded. The action is to redeem certain real property from a sale on execution. The complaint alleges that on November 24, 1911, M. E. Hill, one of the defendants, recovered judgment in the circuit court of Walworth’ county against plaintiff, Minnie G. Way, for the sum of $3,819.58; that an execution was issued on said judgment on December 11, 1911, and levied1 upon certain property which was sold for a sum, which, after payment of costs of sale, left a net 'balance of $542.75 to be applied and credited on said-' judgment. The complaint also alleged cash payments on said judgment, stating dates and amounts of payments, consisting of numerous items. The complaint also alleges that on February 26, 1916, certain property of plaintiff was duly levied upon, and on March 30, 1916, was sold under another execution issued on said judgment, for' the sum of $2,640; that on March 28, 1917, plaintiff paid to the sheriff the sum of $223.30 as interest on said judgment and taxes due on said land, whereby the date of redemption was extended to March 30, 1918. The complaint further alleges that .the total sum due on said judgment, .including the amount due on’ said sheriff’s certificate of sale, amounts to $5,673.61, “leaving a .balance of $i'i7.7'i d'ue on said debt, which plaintiff has tendered and hereby tenders to defendants.”

[1] Plaintiff’s counsel in their argument and brief denominate this action an action in equity for an accounting. Plainly it is, and can only be considered as an action to redeem from an execution sale. The right to redeem depends upon the application of the numerous payments alleg'ed, -which require computation and application. In no other sense is this an action for an accounting. The complaint alleges specifically, with dates, the items of cash payments to Case as attorney for Hill, and that they were to be applied upon the judgment. There is no ' allegation that other payments have been made which have-not been credited thereon. The plaintiff’s statement of payments stands admitted by the demurrer, and the question discussed1 by counsel is whether the payments so alleged and admitted, together with the amount tendered, entitle tire plaintiff to a decree awarding a redemption from the second execution sale.

[2] As we view the allegations of the complaint, it is unnecessary to consider whether a tender in court without a proper offer to redeem, and deposit in a reputable .bank, would, be sufficient to work a redemption. Even an equity court has no power to extend the period of redemption,- or to prescribe a mode of exercising the statutory right of redemption in a manner other than that provided in the statute. But this rule does not deprive courts of their equitable jurisdiction and power to control the legal rights of both creditor and redemptioner under settled rules of equity jurisprudence applicable in-cases of excusable mistake in attempts in good faith to exercise legal rights, or where acts of the parties give rise to an estoppel against the exercise or denial" of such rights. Loomis v. Nat. Supply Co., 99 Kan. 279, 161 Pac. 627. A court, in the exercise of its equity powers, may enforce the right when shown to exist, and in a proper case may decree an estoppel against a denial of the right, even after the expiration of the period named in the statute. A computation of the amount due after the first execution sale, as shown by the items alleged to have been paid, discloses that there remained due "on the judgment, after ‘crediting the amount realized on the first execution sale, the sum of $3,331.79.

[3-6] Applying the rule of computing interest on partial payments on the items alleged to have been paid prior to that date, there was due on the judgment on March 30, 1916, before the second sale, the sum of $2,056.35. The .property in dispute was sold to W. B. Hill for $2,640, an amount approximately .$583.65 in excess of the balance then due on the judgment. The amount of costs accruing on this sale is not alleged, but we can hardly assume that they aggregate the sum of $583.65 thus unaccounted for. Any part of this sum remaining in the hands of W. E. Hill, and not expended for costs of sale, should he accounted for, and, in equity and justice, should he applied upon the redemption. Payments made subsequent to the second execution, and alleged to have been made on the redemption, amount to $2,282.66. The demurrer to the complaint admits that defendants have accepted this sum in the form of partial payments upon the amount necessary to redeem, and if it be assumed that the aggregate of these payments is less than the amount necessary to redeem, we are yet confronted with the question whether in a court of equity an execution creditor will be permitted- to accept and retain partial payments on redemption., deny the debtor’s right to redeem, and claim a deed under the execution sale. It may be that under the statute the sheriff is without authority to accept partial payments upon a redemption. We do not decide that point, as it is not involved in this case. An execution creditor is not required to accept partial payments, but nothing in the statute inhibits him from accepting such payments. The statute limiting the period within which the judgment debtor may redeem was enacted for the benefit of the judgment creditor, and the right to a deed upon the expiration of .the period named in the statute. is .one. which may be waived by-him. Civ. Code, § 2412; State v. Ham, 24 S. D. 639, 124 N. W. 955, Ann. Cas. 1912A, 1070. When waived by contract, or by acts inconsistent with the exercise of the right conferred by the statute, such.waiver amounts to' an absolute estoppel against the exercise of the right, provided the debtor without undue delay seeks the aid of a- court of equity to enforce his right to redeem. Turple v. Lowe, 158 Ind. 314, 62 N. E. 484, 92 Am. St. Rep. 310; Tice v. Russell; 43 Minn. 66, 44 N. W. 886; Lock v. Edmunson, 60 Term, (1 Baxt.) 282; Lucas v. Nichols, 66 Ill. 41; Spath v. Hankins, 55 Ind. 155. It is true that in this case an estoppel is not pleaded in terms; but it is equally true that the facts upon which such an estoppel arises are pleaded, and are admitted by the demurrer.

[7] Appellant’s contention is that the facts alleged in the complaint fail to show that plaintiff is entitled to a decree awarding the right to redeem. This contention is based wholly upon the theory that' the payments alleged in the complaint do not aggregate an amount equal to the sum necessary to redeem, and that the period of redemption has expired. It is true that the complaint contains no allegation as to the amount of costs incurred in the second sale, and for that reason it may be impossible by a mathematical computation to determine whether the defendants have received the full amount necessary to redeem, but the complaint does disclose facts which show that it would be inequitable and wholly unconscionable-to permit the defendants to interpose the statutory period of redemption as a bar to the right to redeem, permit them .to obtain title to the real property through the sheriff’s deed, and at the same time retain payments made upon redemption.

Tile order of the trial court is therefore affirmed.