Bum and others
(Circuit Court, N. D. nlinoi8. July 7, 1882.)
HEDEMPTION FROM FORECLOSURE SALE-CLERK'S COMMISSIONS.
The rule of the federal court requiring a party redeeming real estate, which has been sold under a foreclosure decree, .to pay 1 per cent. commissions to the clerk, on the amount paid into court for the redemption of the property, in addition to the amount, with the prescribed interest thereon, going to the purchaser, is in accordance with section 828 of Revised Statutes, and is not in derogation of the right of redemption given by the state law. The right of redemption given by the state law must be permitted in the federal court, subject to the act of congress fixing the amount to be paid to the clerk on all moneys received, kept, and paid out by him in pursuance of any statute or undera.ny order of court·
.Larned rl Larned; for complainant. HARLAN, Justice. This court, some time back, adopted, and entered of record, rules in regard to the redemption of property from sales under decrees in chancery. One of these rules is in these words:
"Any defendant in the ,suit in which sllch decree is entered, his heirs, adminor aBsigns, or any person interested through or under the defendant in the premises' so sold, may within 12 months from said sale redeem the real estate sdsold by paying to. the purchaser thereof, his heirs, executors, or assigns, or to the clerk ·of the court for the benefit of such purchaser, his exec'. utor, adminiatrators, prassigns, the of money for which said premises were lij)ld or bid off, with interest at the rate of 10 per cent. per aunum from the date of such sale; and in case such'redemption is made by pa.yment of the money to clerk, the person so redeeming shall also pay an additional sum of 1 per cent. on thestnount so paid iridts the clerk's iee for receiving and ·disbursing said redemptiQumoney ; and the clerk, on receivjng saidredemption ·money, at once deposit the same in the registry of the court.'" .
A similar rule exists when the redemption is tnade by a .creditor of the defendant who may be. entitled under the law to redeem. The property of the defendant was sold under deed of foreclosure for $916,100. The purchasers of the property refusing to accept the redemption money, the railroad company was required to pay and did pay to tlie clerk of this court $1,012,392.85, being the amount of · sale, with 10 per cent. interest from the date of sale, as required by ; the local statute, and 1 pei cent. on the purchase money and interest, as required by the before.mentioned rule. Subsequently, 3nd after the iexpiration of severa.l days, the ',clerk, under the orde.r of the court, paid out of the fund to the purchasers of the property :UJ OQ2,369.19, being the purchaSe moliley'and,interest, leaving in cour';o£ \lleflll,nd. the sum of $10,023.6.6..
.. P46lJ.IIIO B. CO·
. The .' company now presents :its petition asking that'tne naIance.-qf the fund in court, $10 j 023.66, be paid over tc;> it. Held, the petition of the cOI11pany rests upon the ground that the court had no power, by rule or otherwise, to require a ins the right of redemption given by statute to pay anything morQ than the purchase money, with the prescribed interest ,thereon. Bu\ in this view the court does not concur. . The statutes of the United States provide that. receiving, ing, and paying out money in pursuance of any statute or order of eourt there shall be paid to. the clerk 1 per cent. of the amount so received, kept, and paid." Rev. St. 828; 10 .St. The rules in question were: made with reference to tqe decisionqf States in Brine v. Ins. 00., which, the supreme court of the ,court, ,ruled' that the reversing the long-established practice in right of redemption given by the statutes of minois constituted a rule of property to be respected alike in the federal and state courts in cases of decretal sales. The law of the state prescribed the mode in which redemption might be effected, and it deemed necessary that this court should make rUles upon 'the subject in conformity as near as might be with the mleagoverning the courts of the state. The mles in question were doubtless also made with reference to the statutes of the United States1ixing Iper'eetitum 8,a'the'amount to be paid to the clerk on kept, and paid out by bim in pursuance ola statute or an order of And ,t,hat statute, it may be obs,er'Ved,giving this 1 per centumj is to beconstmed' in ;conreport to the nection with other provisions 'which 'requite the clerk attorney general semi-annually all. and ,emolument!! any kind by him received, and which limit the amount to be reta-ined by him 'for his personal compensation in any one year to the sum of $3,500. All above that sum is to be accounted for by him to the United States. It is not perceived why, upon money paid to the clerk of .the court for the purpose of redeeming property sold, and by hiJ;ll kept lld),d, paid shall not be allowed as out, the statutory commission :ofr 1 ,pEn' well as upon other moneys kept; and paid out. by under order of court. This case seems to ·be by the langua.geof the statute, and the rule of court is only in furtherance of the objects' intended to be accomplished by it. The amount so paid to thec)e:r:k by. the party redeeming may be. not only as a part. of . . costs of the litigation to be paid by the party, but. calso, p8.fl in carryiIlg the huaiof the necessary. costs and expenses, . Jlessof the coud, and is tqbe accounted for
That the right· to redeem is a statutory right given by the state does not affect the quelltion. The purchaser of the property could not be required to pay the commissions pf the clerk, since, under the statute, he was not obliged to surrender the property and the benefit of his purchase unless he received the full amount of his bid and interest thereon. The only mode, therefore, to obtain· the per cent. which the statute in express words allows on all moneys received, kept,and paid out by the clbrk was to require payment thereof by the losing party-that is, the party redeeming. In brief, the duty of <the to allow the redemption given by subject to the provision of the act the state law must of congress' fixing the limount to be paid'to the clerk on all moneys received, kept, and paid out by hini under order of court. The petition is denied.
COUNTY OF TAZEWELL 'V.
N. D. Illinois.
July 7, 1882.)
A county, as stockholder in a railroad. company, brought suit against the company. Held, on demllrrer, that where tlie bill shows a condition of things touching the control of the corporate affairs of those entrusted with their active management, as would 4ave rendered a formal application to the board of directors to bring the suit an idle ceremony, a case is presented requiring the defendant to answer. '. ' .
FORECLOSURE-FRAUD-SUIT TO SET ASIDE DECIlEE.
A ruling in a foreclosure sUit, denying the petition of Rtorkl101ders to be made parties, in a foreclosure suit brollght against their corporatiOll, ill not a bar to an independent suit to set aside the decree for fraud.
J. S. Oooper, for complainant. G. W. Oothran, for defendant. HARLAN, Justice, (drally'.) Ifniaybe true, a.swas intimated or sug-
'gested in oral argument, that tmssuit, if prosecuted to a conclusion after issue joined, canriotpossibly result in any practical advantage to the complainants. Of this, the court cannot now judge, nor can it regard such considerations under the allegations of the bill to which , demurrers have filed. Taking those allegations to be truei 'as upon'q.emurrer must be done, a case is presented requiring the defendantsto answer. It is contended that the complainants, as stockholders in the railroad company, do not show any right in themselves