259 :they were unable to get the'transcript from the state court until' day of October, the last day of the 20 days allowed when the next term occurs within less'than 20 days from the making of the order of removal. From the record it appears that all the parties reside at Dallas. The .attorneys also reside at Dallas. ·The matter is not jurisdictional. I do not think 'the fourth ground well taken. As to the sixth and seventh grounds of the motion, the plaintiff, having sued the defendants for the sum of $3,500 in the state court, will not be heard in this court, on a motion to remand, to say that the amount involved is not sufficient to give this court jurisdiction. What. ever use the defendants may be able to make. of the matters presented in these grounds of the motion, it is clear to my mind that the plaintiff is estopped by his Bubsequent institution of this suit for $3,500 in the state court from presenting these grounds for his motion to remand. The motion is refused.
SCRIPTER V. BARTLESON
et a1
(OirC1lif,t Oourt, D. Minne8ota. July 7,1890.)
1.
MORTGAGES-REDEMPTION-CREDITORS OF MORTGAGOR.
·t.
A judgment creditor who has redeemed sufficient property of his debtor from foreclosure to satisfy his judgment cannot make a valid redemption of other property. Persons purchasing from a judgment creditor lands redeemed by him after enough had been previously redeemed to satisfy his judgment cannot claim as innooent purchasers.
Sum-SALE BY CREDITOR.
In Equity. On .bill to remove cloud froin title. Warner, Stevens &; Lawrence, for plaintiff. ChaB. J. Bartleson, for· defendants. MILLER, Justice. It seems that one Sprague was the owner of certain lots, the subject of -controversy in this suit; that he and his wife afterwards sold his interest to Scripter, the present plaintiff. The object of the bill is to relieve the title which thus came to him through the Spragues of a cloud cast upon it by an attempt to redeem the lots in controversy from a judicial sale against Sprague. The redemptioner, Francis Martin, had a judgment against Sprague in the common-law court. Sprague had' several pieces of property covered by different mortgages. The mortgages were foreclosed, and the property sold under them. Martin, exercising the right of a judgment creditor to redeem, redeemed some ofthelots·which were· first foreclosed and as to which the time of rawould have heanfirst to expire. After a while he proceeded upon the saine judgment to redeem the lots sold later, which are the ones in' controversy.. Martin, after redeeming these lots, sold them to variouspers()nB, who are made parties to this proceeding, and the object
260
FEDERA.L REPORTER,
vol. 48.
of the bill is to have a declaration that all these attempted redemptions which were a cloud on the title of Scripter, who got his title direct from Sprague, were void and ineffectual, and there is a prayer to have the 'cloud removed. It is conceded that Martin, under the first redemption, received property which was three times the value of his judgment, and that it never was redeemed from him. Plaintiff insists that his judgment was thereby satisfied, and that he had no power or authority under that judgment to,redeem the second pieces of land, which he attempted to do, though the sheriff permitted him to go through the forms of redemption, and gave him certificates. 'rhe supreme court of Minnesota, in a case grow-. ing out of one of these lots, (not a direct bar to this suit, because it was pot between the same parties,) has decided that when an owner of a judgment undertook to exercise the right of redemption, and got property which was sufficient in value to satisfy his judgment, the judgment thereby 'became ineffectual, and he could not redeem any further, or from anyone else, under it. Not only do I feel bound to follow the ruling of the supreme court in this case, but I concur in it. I believe where a man exercises this rather extraordinary right of redemption, which is really a proceeding of his own, and says, "I redeem," that if the property redeem'ed is sufficient to satisfy his judgment the judgment is satisfied, and is extinct. The objection urged to this view of the subject is that these other parties who bought from Martin are innocent purchasers, and they are not affected by the fact that his judgment is satisfied by his first redemption. But I do not think that position is correct. In the first place, I think it is settled, although there is some variance of opinion, that whene,:er a judgment is paid off, satisfied, or discharged, although it remains of record, and although execution was issued and property sold under it, the whole proceeding is void and ineffectual; and the fact that no entry was made' satisfying it of record does not make it a valid judgment, so that a purchaser under the execution becomes an innocent purchaser in the true sem,e of the law. It is true in such case the purchaser might claim that he had all the evidences of judicial sanctity for the purchase, and say, "There was a j ndg,ment of record.. I did not rely wholly upon that. The clerk of the court, or the proper officer. issued an execution, and the sheriff levied an execution on that property. The property was liable to that judgment, and I bought it without knowing any defect in it." But in that class of' cases the weight of decisions, both as regards the ability of the courts and the, number of cases, is in favor of the proposition that the purchaser takes nothing, and that all the steps subsequent to the actual payment or satisfaction of the judgment are void. If that is the case in a judicial proceeding of sale under execution, a process under the seal of the court, and in the hands of the proper officer, .how much more would it be the case .when the foxmer owner of the judgment steps.in and says "I redeem thisland?" He is doing no judicial act. He is not a judicial o,fficer. There is no sanction to what he, has got, except the facts of the case. If he has the authority to redeem he must show that
KILLER .,. KERINL
961
authority. Therefore, in view of the agreed fact in the present case that the first redemption was sufficient in amount to satisfy the judgment, I hold that the judgment WitS functus officio, and the redemption void. There is no need to inquire about these innocent purchasers. A decree will be entered according to the prayer of the bill.
MILLER et
ale
'V. MERINE.
(Otrcutt Oourt, W. D. Missourt, W. D. September 1, 1890.) 1. DEED-RECORDIKG-PRIORITIES.
In 1870 G. conveyed certain land to B., and before the deed was recorded conveyed the same land to H., who paid the price in reliance on B.'s representations tllat G. had attempted to make him a deed which had been destroyed hecause it did not convey the land in question. Held, that under Rev. St. Mo. 1889, § 2420, declaring tbat an unrecorded deed of realty shall not be valid, except as between the parties and such as have actual notice thereof, the conveyance to H. was en1;itled to priority over that to B., though not first recorded. The premises in question having been purchased by one E. at a sale under a trustdeed executed by B.. H. applied to G. to protect his title, and tile latter thereupon procured E. to execute a quitclaim deed of the property to H. Subsequently H. mortgaged the property to his mother, who became the purchaser at a sale under the mortgage, and afterwards sold the premises to M. Held that, assuming that H. had notice that E. held the title for B.. that fact afforded no proof tllat his mother had notice, and that, in the absence of proof that M. had such knowledge, it was immaterial whether lL '8 mother had notice or not.
2.
VENDOR AND VENDEE-BONA FIDE PURCHASER.
At Law.
This is an action of ejectment for the recovery of a valuable tract of land now situated within the limits of Kansas Oity, Jackson county, Mo. The cause having been submitted on stipulation to the court without t\le intervention of a jury,the court makes the following special finding of material facts: First. George W. Bryant is as to these parties the common source of title. On the 21st day of April, 1870. Bryant was the owner in common with one H. F. Barr of the one undivided half of the land in contro\'ersy. H. F. Barr having since conveyed his interest to the wife of the defendant, that interest is nqtin dispute. On said 21st day of April. 1870, Bryant conveyed by deed of warranty to one W. H. Barr. which said deed his said was filed for record in the office of the recorder of said county on the 19th day of October, 1870. {Second. On the 23d day of July, 1870, and before the said deed from Bryant to William H. ::Barr was recorded, said Bryant conveyed said land by deed of warranty to John S. Homan. This deed was not. acknowledged until the 8th day of October. 1870, and was delivered immediately following its ThilS deed was recorded December 13, 1870. Thfrd. The sale of this land to Homan was made by said William H. Barr after thl' deed of Barr from Bryant, Barr representing to Homan at the time that Bryant had attempted to make him a deed for this land, but that the deed delivered to him by Bryant did not contain a description of tbisland, and on that account he had destroyed the same, leaving the title in Bryant, and tbat he would have Bryant make the deed directly to him, (Homan.)