Getting the land back
In October 1922, the owner of two town lots in Billings, Montana, watched them go under the gavel at a sheriff’s sale.
Lots 7 and 8 in block 26, Garlow’s subdivision in Foster’s Addition to the City of Billings, were sold to satisfy a judgment — the debt was $2,978.29 with interest, taxes, attorney’s fees and cost of suit.
The highest bidder was one R. T. Carter, who bid $3,007.42, and on the 21st of October 1922, the sheriff of Yellowstone County, Montana, filed a Sheriff’s certificate of sale. It transferred ownership of the lots to Carter, “subject to redemption in lawful money of the United States pursuant to the Statute in such cases made and provided.”1
So… what did the Sheriff mean by “redemption”?
It turns out that, under the law, at least in most parts of the United States, a sheriff’s sale didn’t mean forever. Montana law starting right from territorial days and up to the date of this sale in 1922 provided that the debtor had some time to get his property back by paying up the debt and later costs.
Under the law in effect in 1922, the only time a sheriff’s sale was final at the time it took place was “when the estate is less than a leasehold of two years’ unexpired term. … In all other cases the property is subject to redemption.”2
And, the statute said:
The judgment debtor, or redemptioner, may redeem the property from the purchaser any time within one year after the sale, on paying the purchaser the amount of his purchase, with one per cent, per month thereon in addition, up to the time of redemption, together with the amount of any assessment or taxes which the purchaser may have paid thereon after purchase, and interest on such amount, and if the purchaser be also a creditor, having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such lien with interest.3
This provision was basically the same as the law in effect when Montana was still a territory, except that the law then provided that the debtor had only six months to redeem the property, not a full year.4
In plain English, under the 1921 act, the original owner could get the property back at any time within the year after the sale by paying up, in full, to the person who bought the property at the sheriff’s sale. And, as a matter of fact, if the debtor “personally occupie(d) the land as a home for himself and his family,” the purchaser didn’t even have the right to possess the property he’d bought during the redemption period.5 He’d have to wait until the whole year was up before the law would let him boot the original owner off the land.
Now notice the part of the statute that talks about the possibility that the redemptioner would be, not the owner, but another creditor. In that case, the statute allowed every creditor to redeem from every other creditor, up the chain of priority.6
Say, for example, the property had three debts against it, recorded in this order: an original mortgage taken out by the owner when he bought the property; a lien filed by someone who worked on the property; and a personal loan secured by the property.
If R. T. Carter wasn’t a creditor at all, then the guy who made the personal loan could redeem the property from Carter by paying Carter everything he’d paid, plus interest and taxes. But if Carter was, say, the workman with the lien, then the guy who had made the personal loan could redeem the property but in addition to the purchase price plus interest and taxes he’d have to pay off the workman’s lien too.
This concept of redemption wasn’t something Montana dreamed up. It was part and parcel of American law from colonial days. In 1730 Virginia, a debtor whose goods or chattels were seized and subject to being sold by the sheriff for non-payment of quit-rents had the right to redeem the goods.7 In Massachusetts, the statutes of 1783 provided for a one-year right of redemption nearly identical to that of 20th century Montana.8
In some cases, these sales and redemptions were recorded in the deed books and you’ll be able to trace the transactions there. In other cases, however — as here in Montana — the sheriff’s sale documents were recorded separately, such as in this book of miscellaneous records.
These particular records show that the original owner didn’t manage to redeem these town lots, but the concept of redemption helps explain for the rest of us how land sold out from under our ancestors at a sheriff’s sale in one year ended up back in the hands of the family the next year.
- Yellowstone County, Montana, Miscellaneous Record Book 115: 8, No. 183768, E. M. Birely, Sheriff, to R. T. Carter, 21 Oct 1922; Yellowstone County Clerk, Billings; digital images, “Montana, Yellowstone County Records, 1881-2011,” FamilySearch (https://familysearch.org : accessed 25 Sep 2013). ↩
- §9441 of The Revised Codes of Montana of 1921 (San Francisco ; Bancroft-Whitney, 1921), 3: 280; digital images, Google Books (http://books.google.com : accessed 25 Sep 2013). ↩
- Ibid., §9443. ↩
- §232, General Laws and Memorials and Resolutions of the Territory of Montana Passed at the Fourth Session of the Legislative Assembly: … 1867 (Virginia City, Montana : State Printers, 1868), 182; digital images, Google Books (http://books.google.com : accessed 25 Sep 2013). ↩
- Ibid., §9449. ↩
- Ibid. See also §9444. ↩
- William Waller Hening, compiler, Hening’s Statutes at Law, Being a Collection of all the Laws of Virginia from the first session of the Legislature, in the Year 1619, 14 vols. (1819-1823; reprint ed., Charlottesville: Jamestown Foundation, 1969), 5: 256. ↩
- Laws of Massachusetts (1783), chapter 57, §3. ↩