Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1882-10-19
SUPREME COURT.
Fail Bench Present. ]

fall Bench Present..
Hudson Wilson, appellant, VS.. Aiexan-
der w. Wallace, Ellen Wallace and Charles
Eigenhrodt as guardian of John Hamme-
ter. a minor, respondents, argued and
submitted.
+ The state of Minnesota, ex rel A. D.
Keyes, relator, VS.. Thomas S. Buckham,
Judge of the Fifth judicial district.
respondent. Argued and submitted.
Adjourned to $50 this morning.
OPINIONS.
The state of minnesota, ex rel. George
Schmidt. relator, VS.. John L. Macdonald,
Judge of the Eighth judicial district.
respondent.
By the court: The alternative writ must
be quashed on two grounds:
First-The affidavit does not set forth
a copy of the proposed statement of the
case, nor show what it was, so that this
court can see that it was necessary in
order to present. the case prop
erly to this court, that the statements asked
to be inserted should be inserted.
Second-There is variance between the
statement which the alternate writ requires
the respondent to insert in the settled case,
and that which the affidavit shows was
struck out.
All objections to the writ are overruled.
Charles G. Parke, appellant, VS.. Valentine
G. Hush, respondent. Syllabus: Rule in
Pamperin VS.. Seaman, % Mimi, 345,
that creditor redeeming need not pay
liens held by the purchaser at an execu-
ton or mortgage sale subsequent to that
on which the sale was had and prior to
that under which he redeems if such
purchaser has not with respect to such
subsequent liens placed himself in tho
line of redemptions by complying with
the statute, followed and applied.
Judgment affirmed.
DISSENTING OPINION BY MITCHELL, ].
Charles Goddard Parke, appellant, VS..
Valentine G. Hush, respondent. am un-
able to concur with my brethren in the
conclusion arrived at by them in this case
think that the defendant as a redemp-
toner under his judgment lien was re-
quired to pay the amount bid by plaintiff
on both execution sales. Our statutes gov
erring redemptions from execution and
mortgage sales are exceedingly defective.
IN certain cases purchaser at such sales
might use another lien held by him as
club to deter other creditors from redeem
ing, and thus get the property for the
amount of his bid, and still hold the debt
secured by such other lien as an unsatisfied
personal demand against his debtor.
The statute makes no provision for Civ
ing notice to subsequent redemptioners of
liens, held Or acquired by purchaser Or
prior redemptioner, other than the one
under which the latter had purchased or
redeemed. 1 think this court was perhaps
Influenced by a consideration of these de-
fects or omissions, to give an erroneous
construction to the statute in
the case of Pamperin VS.. Scan
Ian, which my brethren think
controls this case. I never felt entirely
confident that the decision in that case
was correct, subsequent reflection only in
creased my doubts, and my investigation
of the present case has convinced me that
1t was erroneous.
My reasons for this change of views are
briefly these:
The statute itself will not admit of the
construction put upon it in that case.
So far as concerns the question now un-
der consideration, the statute regulating
redemptions from mortgage sales and that
regulating redemptions from execution
sales are in substance the same.
Sec. 324, chap. &c, gen. statutes, reads:
''If no such redemption (that is by by the
judgment debtor, his heirs or assigns) is
made, the senior creditor may redeem with
in five days after the expiration of said
year, and each subsequent creditor within
five days after the time allowed all prior
iien-holders as aforesaid THAT is the
amount required to be paid by the judg-
ment debtor) ''and all leins prior to has
oaca held by the party from vhon, such re-
denlptiO5, is made.''
think that the provision land the whole
of it, as to what creditor must pay in Or
der to redeem applies to all creditors, the
senior as we'll as subsequent creditors; that
the statute means just what it says, that
any creditor, be he the senior or a subse-
quent one must in order to redeem, pay all
leins prior to his own held by the party
from whom the redemption is made.
Hence think the suggestions made in
Pamperin VS.. Seaman, 'that Ethe senior
creditor can redeem by paying simply the
amount for which the property was sold
and interest, and that it is only subsequent
redemptioners who are required to pay, in
addition to this all leins prior to his own
held by the party from whom the redemp-
ton is made,' are mere interpretations for
which there is no warrant in the text of
the statute. The language of the statute
will not admit of any such construction.
A consideration of the object of giving a
party the right to redeem and of the rules
governing the equity of redemption as it
existed independent of the statute confirm
the views here contended for. The object
of giving the right to redeem is to enable
party having an interest in the property
to remove an encumbrance prior to his
own, aud thus make his own interest bene-
fetal.
Hence it was only those who had sub
sequent or subordinate interest in the
property who had the equity of redemp-
ton, and it was only from membranes
prior to his own, and which might cut out
his own that party could redeem. A per-
son could not redeem from an incumbrance
subsequent to his own because it could
never prejudice him, and the act of a
mans redeeming from himself was un-
heard of because a senseless and useless
act.
Moreover, the rule Of equity which re-
quired party, who filed bill to redeem,
to pay all liens prior to his oacn, held by
the party, from whom he sought to redeem