Mason v. Northwestern Insurance

106 U.S. 163 (____)

MASON
v.
NORTHWESTERN INSURANCE COMPANY.

Supreme Court of United States.

Mr. Edward G. Mason for the appellant.

Mr. Thomas Hoyne for the appellee.

MR. JUSTICE MILLER delivered the opinion of the court.

The error relied on to reverse the decree is the absolute foreclosure of the equity of redemption, without allowing the time for that purpose which the statute of Illinois provides. The case comes directly within Brine v. Insurance Company, 96 U.S. 627. Indeed, it is stronger, for while in that case we took the admission of counsel on both sides that "a sale in accordance with the course and practice of the court" meant a sale which did not admit of any equity of redemption, we have in this case a decree of confirmation of the sale which expressly and in the strongest terms cuts off all such right. In accordance with the principle settled by this court in the case of Brine v. Insurance Company, both these decrees are erroneous.

It is, however, urged as a reason for not applying that principle in the present case, that the appeal was not taken until after the period had elapsed within which the appellant could by the statute have exercised the right of redemption, and that he has neither paid nor tendered the sum necessary to redeem. Burley v. Flint, 105 id. 247, and Suitterlin v. Connecticut Mutual Insurance Co., 90 Ill. 483, are relied on in support of this view.

The last of these cases was a suit in a local court of Illinois to obtain the benefit of the right of redemption from a sale under a foreclosure decree in the Circuit Court of the United States. The Supreme Court of that State refused the relief asked because no effort had been made to redeem within the statutory period, — a ruling which, in Burley v. Flint, we held to be sound.

The reason for this is that, while not seeking to reverse the decree, nor to set aside the sale made thereunder, the proceeding recognized both as valid, and asserted the right of the party to redeem, as though the sale had been made in accordance with the statute of Illinois. This right, of course, could only be secured by a strict compliance with that statute, and having permitted the period to elapse within which he had a right to redeem, he came too late. The court very properly dismissed the bill.

In Burley v. Flint this court approved and adopted the views of the Illinois court, and applied the principle to the case of a bill of review which sought the same end. The bill was filed after the expiration of the period of statutory redemption, and the amount necessary to redeem had not been tendered within that time.

Both cases differ from the present in that they were attempts to enforce the right of redemption outside of, and against the terms of the decree, while the present case seeks by an appeal to reverse and set aside the decree. In the former cases equity required that, before coming to the court for the relief which the plaintiffs asked, they should have complied with the requirements of the law, or at least offered, within proper time, to pay the redemption money. Not having done this, the court very properly refused to permit them to exercise this right after that time had passed, and with it the right to redeem. In the present case the appellant has exercised his right of appeal from the decree within the time allowed to him by the laws of the United States for that purpose. He has, therefore, rightfully brought this case before us for review. His right to do this does not depend upon any offer to redeem within the fifteen months allowed by the Illinois statute, but is an absolute right, which we cannot refuse or deny. As it is apparent from the face of the decree and from what we have said in Brine v. Insurance Company, that both the original decree of sale and the subsequent decree of confirmation are erroneous in refusing to allow the right of redemption under the statute, they must be reversed. If anything were necessary to add force to this reasoning it would be found in the fact that the appellant Mason, in his answer to the original foreclosure bill, expressly referred to the statute of Illinois, and asked that any decree made in the case should make provision for redemption within fifteen months after the sale.

Decrees reversed, and cause remanded for further proceedings in accordance with this opinion.

MR. JUSTICE HARLAN, having been absent during the argument, took no part in the decision of this case.