DocketNumber: No. 11,326.
Judges: Campbell
Filed Date: 4/26/1926
Status: Precedential
Modified Date: 10/19/2024
THE question for decision is as to the right of redemption from a judicial sale attempted to be exercised by the defendant Walker, a subsequent judgment creditor. The material facts out of which the controversy arose are that plaintiff Wallace had received a decree of foreclosure of a trust deed or mortgage which secured an indebtedness to him by Mr. and Mrs. Morse upon a number of separate parcels and descriptions of land aggregating 452 acres, and at the special execution sale thereunder, he being the highest and best bidder, the property was struck off to him in its entirety, whereupon he received the sheriff's certificate of purchase therefor. The defendant Walker's subsequent judgment was inferior as a lien to that of the mortgage. As a judgment creditor he tendered to, and the sheriff received, the total amount for which the property was sold together with interest and costs for the benefit of the previous judgment creditor Wallace. Wallace refused to accept the money tendered and Walker, upon an execution issued out of the county court on his judgment against Mr. Morse, one of Wallace's judgment debtors, and delivered to the sheriff, proceeded to have the sale under the execution advertised for a certain day and before the sale this action in equity was brought by Wallace to restrain the sale and, upon final hearing, to have cancelled Walker's certificate of redemption which was issued to him by the sheriff upon the payment of the money as stated. The court issued the temporary restraining order and upon final hearing ordered Walker's certificate of redemption cancelled and restored to the plaintiff Wallace all his rights the same as if the *Page 382 certificate had not been issued, except that Walker was not interfered with in any attempt that he might make to sell under his execution the undivided interest of his judgment debtor, Mr. Morse. Walker is here with his writ of review.
A number of objections as to the remedy invoked and other objections that were made by defendant Walker during the trial, in view of our conclusion that the judgment must be reversed on the ground that he was a judgment creditor and entitled to redeem, are not necessary to be determined.
The right to redeem is purely statutory and is not to be enlarged by judicial interpretation, yet a liberal construction is to be given the statute allowing redemption, to the end that all the property of a debtor may pay as many debts as possible. 23 C. J. p. 712, § 723, and authorities there cited. If Walker had the right to redeem from the sale which Wallace caused to be made under his special execution, the judgment of the district court is manifestly wrong. That he did have such right is beyond question. Leach v. Torbert,
Defendant in error, recognizing what the court decided in the Leach case, attempts to distinguish the instant case therefrom in that it did not appear in the Leach case whether the co-owner accepted the money at the redemption or whether he rejected it and refused to be bound by it. If such was the ground upon which the decision in the Leach case was based, it is quite likely that the court in its opinion would have said so. The effect of the Leach decision is not to be destroyed by such an argument as is made here by the plaintiff. The facts of the two cases are essentially the same so far as the question for decision here is concerned.
It was further held in the Leach case, page 88: "The term `judgment creditors,' as used in the statute, means judgment creditors of the person or persons whose lands shall be sold under execution." The statute refers only to creditors having judgments or decrees capable of enforcement at the sale of the land to be redeemed. Certainly Walker, as a judgment creditor, is brought within this description. We are not without authority in other jurisdictions. In Tribble v. Wood,
The conclusion which we have reached is not only sustained by authority, but it is equitable and sound in principle. The plaintiff Wallace cannot possibly be injured for there has been tendered to the sheriff for his use the entire amount which he bid at the sale, with all interest and costs. He never acquired any title to the property. He merely had an inchoate right that might ripen into a paper title, if there was no redemption by some other judgment creditor. Nothing has been taken from him. He will receive his entire claim against these two tenants in common of the property, who were his judgment debtors. In addition to this Walker, the subsequent judgment creditor of one of the tenants in common, is to receive something on his judgment if the land redeemed exceeds in value the amount of the redemption payment. The property is thus made to pay as many debts of the judgment debtors and each of them as is possible, whereas if Walker did not have the right to redeem the entire property of the judgment debtors, there having been no redemption *Page 386 by them, it would be appropriated to the payment of one only of the two debts.
The judgment is reversed and the cause remanded with instructions to the district court to set aside its findings and decree and to dismiss the action at the plaintiff's costs.
MR. CHIEF JUSTICE ALLEN and MR. JUSTICE SHEAFOR concur.
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