Benson v. Bunting

HAYNES, C.

In 1892 Margaret Reese and Mary E. Dever, two of the plaintiffs in the action, executed to one William M. Iburg a mortgage upon the real estate described in the complaint herein, to secure the payment of money. In a proceeding to foreclose said mortgage, a decree for the sale of the mortgaged premises was entered on April 13, 1897, and on June 1, 1897,

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the mortgaged premises were sold to defendant Bunting for the sum of nine hundred and fifty dollars, and on February 1, 1898, the commissioner who made the sale conveyed said premises to the purchaser. In January, 1898, the defendants in the foreclosure case offered to redeem said premises from said sale, and tendered to Bunting the full amount required to effect such redemption, which was refused, and this action is prosecuted to obtain a decree permitting them to redeem, notwithstanding the statutory period for redemption had expired before their offer to redeem was made. The other defendants were fictitious persons who were not served, and Bunting will be regarded as the sole defendant.

The complaint contains two counts or causes of action; the first alleging that plaintiffs were induced, through the fraud of the defendant, to believe that they had, under the statute, twelve months within which to redeem the premises sold, and the second count was based upon the alleged mutual mistake of all the parties, all believing and agreeing that the mortgagors had twelve months within which to redeem, when in fact the law gave them but six months. 'Tire defendant demurred to each count upon the ground that the facts stated did not constitute a cause of action. The demurrers were sustained and judgment of dismissal entered, and plaintiffs appeal.

In 1893, when the mortgage was executed, the statute provided that redemption might be made at any time “within six months after the sale.” (Code Civ. Proc., sec. 703.) This section was amended February 36, 1897, by extending the time for redemption to “twelve months,” the amendment to take immediate effect; and in the second count it was alleged, in substance, that all the parties understood and agreed that said amendment which was passed and took effect before the decree was entered in the foreclosure case, controlled, and that under it the time for redemption was extended to twelve months. It is conceded by plaintiffs that the statutory time within which redemption must be effected is fixed by the statute in force at the time the mortgage was executed, and not by one subsequently enacted, and that, under the statute, they should have redeemed within six months from the date of the sale.