Clarke v. Northwestern Mut. Life Ins.

U.S. Court of Appeals for the Eighth Circuit
Clarke v. Northwestern Mut. Life Ins., 94 F. 262 (8th Cir. 1899)
36 C.C.A. 233; 1899 U.S. App. LEXIS 2342

Clarke v. Northwestern Mut. Life Ins.

Opinion of the Court

CALDWELL, Circuit Judge

(after stating the facts as above). If the appellant desired to redeem the premises in question, he should have paid the purchaser (who was not the plaintiff in the action) at the foreclosure sale, or into court before the confirmation of the sale, the amount of its bid, with 12 per cent, interest thereon from the date of the sale to the date of redemption. Code Civ. Proc. Neb. § 497a (Comp. St. p. 595); Swearingen v. Roberts, 12 Neb. 333, 11 N. W. 325. Instead of doing this, the appellant, without redeeming, or paying any sum to effect a redemption, or becoming bound to do so, filed a fishing petition, by which he sought to find out, before he made the redemption or parted with any money or incurred any liability, what rights he would acquire by making it. It seems highly probable that, unless he has the assurance in advance that his construction .of the statute will prevail, he will not redeem. It is not the business of courts to anticipate controversies or try moot cases. The appellant had no right to delay the confirmation of the sale and the redemption, and keep the purchaser out of its title to the premises, or the money it paid for them, until it should be determined what he would get if he made the redemption, and whether it would be profitable to make it. The case is not one for a bill of interpleader; and the petitioner is not a trustee, and sustains no trust relation that entitles him to ask the advice and direction of a court of equity as to what he shall do in the premises. The lower court should have dismissed his petition. But it took jurisdiction of the same, and in so doing erred in fixing the amount which the appellant was required to pay to effecc the redemption, by not following the rule prescribed by the supreme court of the state of Nebraska in Swearingen v. Roberts, supra, and in undertaking to determine the effect of the redemption upon the *265rights of the mortgagees and lienholders, whose mortgages and liens were prior in point of time to the acquisition by the appellant of the mortgagors-' equity of redemption in the premises. We decide nothing more than that, in determining the amount necessary to effect redemption, the rale prescribed by the Nebraska statute, as construed by the supreme court of that state, should be followed, and that the effect of the redemption, and the rights acquired by making it, must be left to be determined when a case shall properly arise presenting those questions. As the appellant may have been misled by the action of the lower court in the premises, the order of this court will be that the decree of the circuit court be reversed, and the cause remanded, wi th directions to that court to enter an order immediately upon the receipt of the mandate of this court giving the appellant the right to redeem, as he may be advised, within 10 days after the entry of such order. Ordered accordingly.

Reference

Full Case Name
CLARKE v. NORTHWESTERN MUT. LIFE INS. CO.
Cited By
1 case
Status
Published