Allis v. Insurance Co. — 97 U.S. 144

Majority — Miller J.

p. 144

Allis v. Insurance Company.

Syllabus

1. -Where it can see that no harm resulted to the appellant, this court will not reverse a decree on account of an immaterial departure from the technical rules of proceeding.

2. The statute of Minnesota declares that, in the foreclosure of a mortgage by a proceeding in court, the debtor, after the confirmation of the sale, shall be allowed twelve months in which to redeem, by paying the amount bid at the sale, with interest. Where, in a foreclosure suit, a decree, passed by a court of the United States sitting in that State, ordered the master, on making the sale, to deliver to the.purchaser a certificate that, unless the mortgaged premises were, within twelve months after the sale, redeemed, by payment of- the sum bid, with interest, he would be entitled to a deed, and should be let into possession upon producing the master’s deed and a certified copy of the order of the court confirming the report of the sale, — Held, that the decree gave substantial effect to' the equity of redemption secured by the statute.

Appeal from tbe Circuit Court of tbe United States for .tbe District of Minnesota.

Tbe facts are stated in the opinion of tbe court.

Mr. H. J. Hdfrn for tbe appellant.

Mr'. L. S. Dixon, contra.

delivered tbe opinion of tbe court.

This is an appeal from a decree of tbe Circuit Court for tbe District of Minnesota, ordering a sale of land in a proceeding to foreclose a mortgage. Tbe appellant, who was defendant

p. 145

below, entered bis appearance in due time, but default was taken for want of answer, and a decree pro confesso rendered. Tbe case was then referred to a master, to ascertain tbe sum due, and report a decree. This reference, and his report a few days after, and tbe decree now complained of, were all made during the same term of tbe court, and no exceptions were taken to tbe report.

We are asked to reverse tbe decree and send tbe case back, because it does not appear that tbe appellant bad notice of the time of tbe sitting of tbe master, or of tbe filing of bis report. It is sufficient to say that tbe reference to tbe master was wholly unnecessary, as be bad nothing to do but compute the sum due on tbe face of tbe papers, which tbe court ought to have done by itself, or by tbe clerk, or by tbe complainant’s counsel. Tbe papers are all now in this record, and thqre is no pretence of any mistake or wrong in these matters done to tbe appellant.

This court will not reverse a decree in chancery for an immar terial departure from tbe technical rules, when it can see that no barm resulted to tbe appellant.

But tbe assignment of errors attempts to raise tbe question which we considered in Brine v. Insurance Company ( 96 U. S. 627 ); namely, that tbe time given by tbe statute's of Minnesota for redemption after sale is disregarded by this decree.

The Minnesota statutes declare, that, in a foreclosure of a mortgage, by a proceeding in court, there shall be allowed to the debtor twelve months after tbe confirmation of tbe sale in which be may redeem, by paying tbe amount of tbe sale with interest.

Tbe decree of tbe court in this case orders tbe master, on making tbe sale, to deliver to tbe purchaser a certificate that unless tbe property is redeemed within twelve months after tbe sale, by payment of tbe sum bid, with interest, be will be entitled to a deed.

And it proceeds to say that, unless tbe land be so redeemed within the twelve months, the purchaser shall be let into the possession upon tbe production of the deed of said master, and a certified copy of tbe order confirming tbe report of tbe sale.

p. 146

It would seem probable from this that the court intends to defer the order confirming the sale until the time for redemption has expired, and that the report of the sale and the deed of the master will then be confirmed in one order. There does, not seem to- be any objection to this practice, as there will be no occasion to confirm the sale if the land is redeemed; and if it is not, the court can confirm the sale and approve the deed by the same final order.

We have* in the case above referred to, expressed the view that, if the courts of the United States give substantial effect to the right of redemption secured by the statute, they are at liberty in so doing to adhere to their own modes of proceeding. We think this has been done in the present case. The substantial right is to have a year to redeem. In the State courts, where 1jhe practice undoubtedly is to report the sale at once for confirmation, the time begins to run from that confirmation. But if in the Federal court the practice is to make the final confirmation and deed at the same time, it is a necessity that the time allowed for redemption shall precede the deed and confirmation. There is here a substantial recognition of the right to redeem within the twelve months, and we do not think there is any error for which the decree should be reversed.

Decree affirmed

Cases cited

Brine v. Insurance Co. 96 U. S. 627 SCOTUS p. 145