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Hummel v. Citizens' Bldg. & Loan Association

Supreme Court of Arizona

March 23, 1931

LOUIS G. HUMMEL, Appellant,

APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment affirmed.

Mr. Louis G. Hummel, in pro. per.

Mr. E. T. Cusick, for Appellees.


[38 Ariz. 55] LOCKWOOD, J.

Louis G. Hummel, hereinafter called plaintiff, brought suit against Citizens' Building & Loan Association, a corporation, William F. Curtayne, Margaret Curtayne, his wife, and Unit Laundry, a corporation, on two causes of action; the first demanding an accounting of the rents, profits, and value of the use and occupation of certain premises, and the second asking that a sheriff's deed to said premises be set aside and the sheriff directed to issue another deed to plaintiff covering the same property. The questions involved are solely those of law, but, in order to determine them, a brief statement of the facts is necessary.

One Ah Moy, who was the owner of a portion of lot 1, block 74, in the city of Tucson, executed a note in the sum of one thousand dollars to the Citizens' Building & Loan Association, hereinafter called the Association, and to secure this note gave a mortgage on said lot 1,

Page 1015

which was recorded May 23, 1925. At a later date he gave a note in the sum of $525.64 to Bernard and Leopold Meier for a balance due on a merchandise account, and to secure this latter note executed a second mortgage on the lot to the Meiers, which last mortgage was recorded March 12, 1926. On May 17, 1927, the Association filed suit for foreclosure of its mortgage on the property above mentioned, but the Meiers were not made parties to the action. On July 6, 1927, after sale under the judgment in the foreclosure suit aforesaid, the Association received a certificate of sale for the property, and on January 9, 1928, a sheriff's deed thereto. On June 15, 1928, it contracted to sell the property in question to the Curtaynes, who afterwards assigned their contract to Unit Laundry.

[38 Ariz. 56] Shortly after the Association had agreed to sell the property, it discovered the existence of the Meier mortgage, and on July 5, 1928, demanded from the Meier brothers a quitclaim deed to the premises, which was refused. Thereafter, and on March 11, 1929, Hummel, to whom the Meier note and mortgage had been assigned, made a demand on the Association for an accounting of the rent and value of the use and occupation of the premises, offering to redeem the property from the sheriff's sale under his assignment of the Meier mortgage above referred to, and on April 3, 1929, filed a notice of intention to redeem in the county recorder's office, copies of which were duly served on all the defendants, and on the sheriff of Pima county. The demand to redeem and for an accounting were refused, and thereafter this suit was brought. At the time of the suit, Unit Laundry tendered plaintiff the entire amount due him on the Meier note and mortgage as aforesaid, including costs and attorney's fee, which tender was renewed at the time of trial.

After hearing, judgment was entered for defendants; the latter being ordered to pay into court the amount due plaintiff on the second mortgage, which they did. After the usual motion for a new trial was overruled, plaintiff appealed to this court.

There are some five formal assignments of error, but we are of the opinion the matter will be best disposed of by discussing certain legal principles applicable to the situation above set forth. It is apparent to us on examination of the brief for plaintiff that there is a misapprehension on his part as to the rights of a second mortgagee under the circumstances above set forth, arising from the confusion of an "equity of redemption" and a "right of redemption." As we said in the case of Western Land & Cattle Co. v. National Bank, 28 Ariz. 270, 236 P. 725: [38 Ariz. 57]

"The right of redemption after sale on foreclosure is distinct from the equity of redemption after breach of condition and before the sale. The former commences only when the latter ends. One rests on the principles of equity, the other on the terms of the statute."

Plaintiff in this case assumes the position that, since he was not a party to the foreclosure suit, his rights under the junior mortgage were not divested by the foreclosure and sale. This is, of course, true. Metcalf v. Phoenix Title & Trust Co., 33 Ariz. 13, 57 A.L.R. 1015, 261 P. 633. But we are of the opinion that he is mistaken as to what those rights were.

The "right of redemption" under which he claims is purely statutory in its nature, and he must bring himself strictly within its provisions in order to take advantage thereof. Collins v. Scott,100 Cal. 446, 34 P. 1085; Bangham v. Michael,179 Cal. 390, 177 P. 161. As we said, it is not governed by the principles of equity, but by the terms of the statute. At the time the first mortgage was foreclosed and the sale made, the Code of 1913 was in effect. At the time this suit was brought, it had been superseded by the Code of 1928. The sections of the two Codes, however, applicable to the present ...

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