Morris v. Hettinger

¶1(dissenting) : The decision in Clark v. Nichols does not seem to me to reach the present case. There the bidder paid only the amount of the judgment, which went to the lien holder. Here a surplus over the judgment was paid, of which the redemptioner has had the use in the meantime, and the question is as to the rate of interest he should pay upon *75that. Land is often sold judicially to satisfy a number of liens, each bearing interest at a different rate. The proceeds of a sale might be disbursed in payment of a tax lien bearing 12- per cent, one mortgage lien bearing 8 per cent, another bearing 4, and the lien of a judgment founded on a tort, bearing 6 per cent. It is the statute in each case that fixes the rate, although the statute adopts the contract rate where there is one. The money paid by the purchaser being disbursed among the holders of the several liens, he, in a way, steps into their shoes, and, as I understand the reasoning of the Clark-Nichols case, in case of redemption he would be entitled to receive upon the amount applied to each lien respectively the rate of interest which that particular lien bore. Where there is a surplus over all the liens I see no reason why the rate of interest borne by it should be controlled by that of one lien rather than another. And in default of any other test, I think the legislature should be deemed to have intended 6 per cent, that being the rate usually adopted in the absence of a contract.