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decided: March 5, 1889.



Author: Harlan

[ 130 U.S. Page 44]

 MR. JUSTICE HARLAN delivered the opinion of the court.

The object of this suit in equity is to obtain a decree for the redemption of certain parcels of real estate in the county of Walla Walla, Washington Territory, which were sold by the

[ 130 U.S. Page 45]

     sheriff on the second day of January, 1875, at public auction, under a decree rendered in the District Court of the First Judicial District of that Territory, in the case of Joseph Petrain against Edward Sheil, W. B. Thomas, John F. Abbott and D. Brouker. The appellees, who were the defendants below, were purchasers of the several parcels. Before the expiration of six months from the confirmation of the sale, namely, on the 10th of November, 1875, the appellant, who was the plaintiff below, tendered to the sheriff, in lawful money, the amount necessary to redeem the entire property, presenting to him at the time papers showing that he had given to the defendants, at least two days prior to November 10, 1875, notice that he would make such tender; a certified copy of the above decree, with papers showing the amount due thereon; and a duly certified copy of the deed from Sheil, transferring to the plaintiff, on December 28, 1874, all the property in controversy. The sheriff refused to receive the money, and the amount was brought into court at the commencement of this action.

The plaintiff bases his right to redeem upon certain sections of the Civil Practice Act of Washington Territory, approved November 13, 1873, (Laws of Washington, 1873, p. 94,) relating to "sales of property under execution," by one of which, § 364, it is declared that a sale of real property, when the estate is less than a leasehold of two years' unexpired term, shall be absolute, but "in all other cases such property shall be subject to redemption as hereinafter provided in this chapter." That chapter directs the sheriff to deliver to the purchaser a certificate of the sale, and gives the right of redemption to a judgment debtor or his successor in interest, in the whole or in part of the property separately sold, and to a creditor having a lien on any portion of the property, separately sold, by judgment, decree, or mortgage, subsequent in time to that for which the property was sold. § 365. The persons last described are designated by the statute redemptioners. By another section the judgment debtor or redemptioner is permitted to redeem the property within six months from the date of the order confirming the sale, by paying the amount

[ 130 U.S. Page 46]

     of the purchase, with interest at the rate of two per cent per month from the time of sale, together with any taxes paid by the purchaser; and, if the purchaser be also a creditor having a lien prior to that of the redemptioner; the amount of such lien with interest. § 366. A succeeding section prescribes the mode of redeeming, namely: "1. The person seeking to redeem shall give the purchaser or redemptioner, as the case may be, two days' notice of his intention to apply to the sheriff for that purpose; at the time specified in such notice such person may redeem by paying to the sheriff the sum required. The sheriff shall give the person redeeming a certificate as in case of sale on execution, adding therein the sum paid on redemption, from whom redeemed, and the date thereof. A party seeking to redeem shall submit to the sheriff the evidence of his right thereto, as follows: 2. Proof that the notice required by this section has been given to the purchaser or redemptioner, or waived. 3. If he be a lien creditor, a copy of the docket of the judgment or decree under which he claims the right to redeem, certified to the clerk of the court where such judgment or decree is docketed, or, if he seeks to redeem upon mortgage, the certificate of the record thereof. 4. A copy of any assignment necessary to establish his claim, verified by the affidavit of himself or agent showing the amount then actually due on the judgment, decree, or mortgage. 5. If the redemptioner or purchaser have a lien prior to that of the lien creditor seeking to redeem, such redemptioner or purchaser shall submit to the sheriff the like evidence thereof and of the amount due thereon, or the same may be disregarded."

In the same act is a separate chapter regulating foreclosures of mortgages. None of the provisions of that chapter, however, give the right of redemption after a sale under a decree of foreclosure. But it is provided that "the payment of the mortgage debt with interest and costs at any time before sale shall satisfy the judgment." § 563.

The contention of the plaintiff is that the provisions of the chapter relating to "sales under execution," so far as they refer to the right of redemption, apply to sales under decrees

[ 130 U.S. Page 47]

     of foreclosure. In support of this view decisions of the Supreme Court of California are cited, construing similar statutory provisions from which, it is claimed, the statute of Washington Territory was copied. Kent v. Laffan, 2 Cal. 595 (1852); Harlan v. Smith, 6 Cal. 173 (1856); McMillan v. Richards, 9 Cal. 365 (1858); Gross v. Fowler, 21 Cal. 392 (1863). On the other hand it is insisted that the Civil Practice Act of 1873, so far as it related to sales under execution and to sales under decrees for the foreclosure of mortgages, was copied substantially from Iowa statutes, which, it is contended, did not give the right to redeem after sale under a foreclosure decree. Stoddard v. Forbes, 13 Iowa, 296 (1862); Kramer v. Rebman, 9 Iowa, 114 (1859).

In the view we take of this case it is unnecessary to express an opinion whether the provision relating to sales under execution, properly interpreted, gave a right of redemption after sale under a decree of foreclosure. If it did not, the decree below must be affirmed, for a right to redeem, after sale, does not exist unless given by statute. Counsel for the plaintiff speaks of a common-law right of redemption after sale that attaches in the absence of any statutory provision on the subject. We are not aware of any such right existing at common law, or in the system of equity as administered in the courts of England previous to the organization of our government. It is a mistake to suppose that the case of Clark v. Reyburn, 8 Wall. 318, recognizes a right of redemption after a sale under a foreclosure decree, independently of statute. It is there stated that "by the common law, when the condition of the mortgage was broken, the estate of the mortgagee became indefeasible," and that "equity interposed and permitted the mortgagor, within a reasonable time, to redeem upon the payment of the amount due before sale;" also, that, according to the settled practice in equity, when proceedings to foreclose were ...

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