Rasey v. Security First National Bank

PLUMMER, Acting P. J.

Plaintiff instituted this action to vacate and set aside a sale, certificate of sale and deed made by the commissioner under a decree of foreclosure and sale made of a certain mortgage wherein Rose Julia Rasey, deceased, had mortgaged certain premises to secure the payment of a promissory note in the sum of $18,000, and interest thereon, which, at the time of foreclosure aggregated a sum between $23,000 and $24,000. To this complaint the respondents interposed a demurrer which was sustained without leave to amend, and from the judgment entered thereafter, this appeal is prosecuted.

The record shows that the property covered by the mortgage was sold to satisfy a judgment in the sum of $23,572.68. Of this amount it is alleged in the complaint that costs in the sum of $66.95 were allowed that should not have been allowed. It appears that the property in question under the foreclosure was advertised twice, and that one of the advertisements cost the sum of $37.50; that the commissioner, while being allowed only the sum of $10, added the expense of the extra advertising and other items, which amounted to the said sum of $66.95, in excess of the costs that should have been allowed the commissioner for making sale. The sale made by the commissioner took place on the thirteenth day of November, 1928. The com

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plaint in this action was filed on the fourth day of February, 1930, approximately fifteen months after the date of sale. There is no showing in the complaint that either the plaintiff in this action or the deceased Rose Julia Rasey, ever sought to redeem the property from the foreclosure sale. No attempt was made to arrest the sale; no attempt to set aside the sale until long after the period of redemption had passed, and not until after the property had been conveyed by the purchaser at the foreclosure sale. No offer was made in this action to pay the amount due, and there is no .showing whatever that the plaintiff is able, or can pay the amount due on the mortgage.

If it be conceded that the costs and charges allowed the commissioner were in excess in the sum of $66.95 above what should have been allowed, there is no showing that the plaintiff has been injured thereby, or that said sum of money could not have been recovered by a simple action at law against the commissioner. We may further state that the complaint is entirely silent as to whether any offer was ever made to redeem the property from the foreclosure sale by tendering the amount due on the mortgage, less the sum of $66.95, or any other sum.