Calkins v. Steinbach

Ross, J. -The case made by the complaint is this: Three persons—Gallagher, Mahé and Paviller—were seized in fee of certain lands. Being so seized, they executed a mortgage upon the lands, to secure the payment of their promissory note to Gasper Orena and wife.

The mortgage was subsequently foreclosed, because of default in the payment of the money ; and under and pursuant to the decree of foreclosure, the lands were regularly sold at public auction to one Le Roy, for $18,837.89, who received from the sheriff a proper certificate of sale, which was duly recorded in the county where the lands were situated. Within six months after the sale, one of the mortgagors and judgment debtors, Gallagher, executed to the plaintiff a deed, conveying to him all of his (Gallagher’s) interest in the lands, which deed was duly recorded in the proper county; and within six months from the date of the sheriff’s sale, plaintiff, as successor in interest of the judgment debtor, Gallagher, redeemed the lands by paying to the sheriff the full amount of money necessary for that purpose, aggregating $20,985.40 ; upon the receipt of which the sheriff executed to plaintiff a proper certificate of redemption, which was duly recorded in the office of the recorder of the county, and afterwards paid over the money to Le Roy, who received it in full satisfaction of his rights as purchaser at the foreclosure sale. Prior to the plaintiff’s purchase from Gallagher, the defendant Steinbach acquired by purchase the interest of Paviller in the lands, a deed for which was put on record; [119]and subsequently, but before the commencement of the present action, Steinbach acquired, through a sale made under and pursuant to proper probate proceedings, all of the interest of the estate of Mahé in the lands, Mahé having deceased.

The complaint alleges these facts, and then avers “ that more than sixty days have expired since the plaintiff redeemed the above described land and premises from foreclosure sale, and neither of the defendants herein (defendants being Steinbach, one Dussol, and the administrator of the estate of the deceased Mahé) have redeemed, or offered to redeem, any part or portion of said land or premises, or interest therein, from him. That all of the defendants herein have had notice of plaintiff’s said redemption, and plaintiff has frequently since said redemption demanded of the said defendants, and each of them, that they and each of them pay to the plaintiff such proportion of the said sum of $20,985.40, so as aforesaid paid by plaintiff in redeeming said land and premises, together with interest thereon, as the interest of each of said defendants in said lands and premises bears to the whole thereof. That, nevertheless, the said defendants claim some right or title to said land and premises, by reason of the former co-tenancy, as aforesaid. That the defendants and each of them have hitherto wholly refused, and still do continue to refuse, to pay to plaintiff or contribute any portion of said money so paid by him on said redemption.” And the prayer of the complaint is :