Hershey v. Dennis
Synopsis
Leen of Subsequent Judgment—Homestead.—Where a mortgagor filed a homestead subsequent to a second mortgage, and both mortgages were foreclosed, the first mortgage and part of the second being paid, and judgment for the deficiency due the second mortgagee being docketed: held, that the lien of the docketed deficiency was superseded by the homestead.
Idem-Redemption.—In such a case, the second mortgagee could not redeem from the purchaser at the mortgage sale.
Tender of Redemption Money.—The tender of the redemption money extinguishes the purchaser’s lien, and is equivalent to payment.
By the Court : Assuming, for the purposes of this case, that Barrett had a lien by virtue of the docketed deficiency arising from the mortgage sale, except for the homestead, it is plain that no such lien could attach after the declaration of homestead.
Barrett, therefore, occupied no such relation to the property or parties as authorized him to redeem from the 'purchaser at the mortgage sale; and Dennis, the purchaser, acquired no right as redemptioner by reason of a re-assignment from Barrett.
It follows that the mortgagor or his grantee could redeem from Dennis on payment of the amount of his bid and costs; etc. The plaintiff having tendered a sufficient sum to redeem, the Sheriff had no power to execute a conveyance to the defendant Dennis.
Judgment and order reversed, and cause remanded for a new trial.
Mr. Justice Crocker did not express an opinion in this case.
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