American Banking & Trust Co. v. Lynch
American Banking & Trust Co. v. Lynch
Opinion of the Court
On August 26 1887, Margaret J. and W. A. Lynch mortgaged to the Maine Mortgage Loan Company, of which the respondent is successor, their dwelling and two lots in Huron, to secure a note of even date for $1,000, due in three years, which mortgage was duly recorded on April 25, 1888. About the 25th day of April, 1888, Hubbard Bros, brought, in Beadle county district court, an action to foreclose a mechanic’s lien on the aforesaid dwelling and lots, against Margaret J. and W. A. Lynch, and on November 11, 1890, rocovered a judgment against them for $216.35, and directing the sale of the premises to satisfy the judgment. Execution being issued to carry into effeót said judgment, said premises on February 14, 1891, were sold thereunder at public auction, and bid in by Hubbard Bros, for $237.36- — the full amount of judgment and costs then due. The certificate of sale issued by the sheriff to Hubbard Bros, became, by due assignment, the property of appellant, J. W. Lynch; and on February 16, 1892, the time of redemption of Margaret J. and W. A. Lynch having expired, and no redemption having been made by them the sheriff issued a sheriff’s deed to J. W. Lynch for said property, which deed was duly recorded on same day in Beadle county register of deed’s office. The respondent was not made a party to the Hubbard Bros. ’ mechanic’s lien foreclosure suit. On February 27, 1891, respondent commenced an action in Beadle county circuit court against Margaret J. and W. A. Lynch to foreclose its mortgage. To this suit, Hubbard Bros, were made defendants, and, answering to the complaint, set up their mechanic’s lien against the mortgaged premises, and charged that said
Every person having an interest in property subject to a lien, has a right to redeem it from th,e lien at any time after the claim is due, and before his right of redemption is foreclosed. Comp. Laws, § 4338. One who has a lien inferior to another upon the same property has a right to redeem the property in the same manner as its owner might, from the superior lien. Id. § 4339. Hubbard Bros.’ mechanic’s lien was superior to the lien of plaintiff’s mortgage. It could be enforced only by an equitable action. Id. § 5481; Lumber Co. v. Keefe, 6 Dak. 160, 41 N. W. 743. The statute gives a junior lienholder the
Due attention has been given the assignments of error relating to the introduction of evidence. Finding no reversible error, the judgment of the circuit court is affirmed.
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- 1. Under Comp. Laws, §§ 4338, 4339 providing that every person having an interest in property subject to a lien has a right to redeem at any time before such right is foreclosed, and that a junior lienor may redeem from a superior lien in the same manner as the owner, a junior mortgagee’s right to redeem from a sale under a prior mechanic’s lien is not foreclosed by an action to enforce the latter in which the mortgagee is not made a party. 2. A junior mortgagee does not loose his right to redeem from a prior mechanic’s lien, in the action to foreclose which he was not made a party, because subsequent thereto he obtained a decree for the sale of the premises under his mortgage, without being’ first required to redeem from the prior lien.