Brand v. Baker

• Decision Date: 26 January 1903
• Citation: 71 P. 320,42 Or. 426
• Parties: BRAND v. BAKER et al.
• Court: Oregon Supreme Court

71 P. 320

42 Or. 426

BRAND v. BAKER et al.

Supreme Court of Oregon

January 26, 1903

Appeal from circuit court, Multnomah county; Arthur L. Frazer Judge.

Action by David Brand against John D. Baker and another. From an order vacating an execution sale, defendants appeal. Reversed.

This is an appeal from an order vacating a sale under a writ of execution. Plaintiff is a resident of Scotland, but owns real estate in Portland. Macmaster & Birrell, of tat city, are and for many years have been, his agents, having the entire control and management of his property and business affairs therein. In 1899 they employed Miller Murdock, an attorney of this court, to commence an action in the name of their principal against the defendants for the use and occupation of real property belonging to him. Upon the trial of the action on February 6, 1900, an involuntary nonsuit was given against the plaintiff, and a judgment for $33 costs. On March 6th an execution was issued on the judgment, and placed in the hands of the sheriff for service, who, on the 16th levied upon three lots in the city of Portland belonging to the plaintiff, of the probable value of $30,000, by making and filing with the county clerk the certificate provided for by section 301, Bel. & C. Ann.Codes & St., and thereafter advertised them for sale in the manner provided by law. On April 28th, after offering them separately at public auction and receiving no bids therefor, he sold them en masse to C.C Palmer, the attorney for defendants, for $42.25; that being the highest and best bid offered therefor. On May 9th the sheriff reported the sale and proceedings under the writ, returning the execution fully satisfied. No objections having been made or filed to the confirmation of the sale, on January 24, 1901, about eight months after the sheriff's return had been filed, it was confirmed on motion of Palmer. On December 31, 1901, Murdock, on behalf of the plaintiff, and in pursuance of a previous notice, redeemed the property, and received from the sheriff a certificate of redemption. On January 24, 1902, the court, on its own motion, and without notice to the defendants or to the purchaser, made an order vacating and setting aside the confirmation of the sale because "inadvertently made," and that, "had all the facts and circumstances in connection with the sale been known *** at the time of said confirmation, the said order would not have been made." On the 7th of the next month the plaintiff appeared by his attorneys, and moved the court to set aside and vacate the order of confirmation, and for leave to file objections to the sale and the confirmation thereof, on the ground that such order "was entered through the inadvertence, mistake, and excusable neglect of plaintiff." This motion was supported by the affidavits of Macmaster and Birrell, stating, in substance, that they are the sole and exclusive agents of the plaintiff, and have entire charge and control of the management of his property and affairs in Portland; that, acting as such agents, they employed Miller Murdock, whom they believed, and had reason to believe, to be a careful and capable attorney, to represent the plaintiff in said action; that in all matters and things pertaining thereto the plaintiff and affiants relied entirely upon Murdock to advise them and properly to attend to such matters; that Murdock was not the regularly retained legal adviser of the plaintiff, but was employed for this particular action, and no other; that, after the rendition of the judgment against the plaintiff for costs, affiants frequently requested Murdock to advise them of the amount of such judgment, in order that they, as agents for the plaintiff, might pay it, and have it satisfied of record; that Murdock from time to time advised them that he was negotiating with the defendants' attorney, Mr. Palmer, for the settlement of the judgment, and that in due course the same would be paid and satisfied; that, immediately after the recovery of the judgment, plaintiff discharged Murdock, and paid him in full for his services, except that he was authorized to negotiate with the defendants for the settlement or compromise of the judgment for costs; that plaintiff employed other attorneys, who prosecuted the same cause of action to a successful issue; that affiants are not able to state the reason why Murdock concealed from them and the plaintiff the true state of affairs with reference to such levy and sale, unless it was on account of having been unsuccessful in the action, and, having incurred a large sum for expenses, he feared that he would be criticised adversely for permitting the further expense of a levy and sale; that neither the plaintiff, nor the affiants, as his agents, ever had any notice or knowledge that execution had been issued on the judgment until the 15th day of January, 1902, when they were so notified by Palmer, who demanded of them an accounting for all the rents and profits of the real property levied upon and sold from the day of sale until the 31st of December, 1901, the day of redemption; that prior to such notice, and on the 30th of December, 1901, they delivered to Murdock, who had appeared as attorney for the plaintiff in the action, the sum of $49.80, for the purpose, as they understood, of paying the judgment, but, without the knowledge of the plaintiff or of the affiants, and without authority to do so, he redeemed the property from the pretended sale; that all of the proceedings in the matter subsequent to the entry of judgment were had without any actual notice or knowledge on the part of the plaintiff, or of the affiants, as his agents, and that notice of the levy and sale was not communicated to them by Murdock; that the failure of the plaintiff to file objections to the confirmation of the sale within the time provided by law was due to the lack of any knowledge or notice to him or his agents that the sale had occurred, and, if plaintiff or the affiants had had knowledge of the levy or sale, the plaintiff would have presented in due course his objections to the confirmation thereof; that, notwithstanding the fact that the affiants, as the sureties for Brand in the action brought by him against the defendants, had furnished and caused to be filed an undertaking for a writ of attachment, whereby they undertook and agreed to respond to any judgment that might be entered against the plaintiff and in favor of the defendants, they were not informed that an execution had been issued upon the judgment, and no demand was ever made upon them by the sheriff to pay the same; that Palmer was the attorney for the defendants in the action, and became the purchaser at the sale under the execution, and has since brought a suit against the affiants to collect from them the rents and profits upon the property from the day of the alleged sale and purchase by him to the day of redemption; that the amount of the rents and profits during such time would amount to about $3,000, which affiants have collected, and long since remitted to the plaintiff; that, unless the order of confirmation is set aside, and plaintiff is permitted to file objections thereto, great hardship will be imposed upon these affiants and upon the plaintiff, and that, in the opinion of affiants, Murdock will be financially unable to respond in damages in case plaintiff should be compelled to pay Palmer the sum of $3,000 for the rents, issues, and profits of the property. The defendants filed Palmer's affidavit in opposition to the motion, which shows that in the record of the action in which the judgment was recovered there is no suggestion that Macmaster & Birrell were plaintiff's agents, or that any one in Oregon represented him in reference to his property, except Murdock, who verified the pleadings on the ground that his client was not a resident of the state; that in the legal proceedings subsequently commenced by Brand against one of the defendants, and which were pending until January 10, 1901, Murdock acted as Brand's attorney, to the knowledge of Macmaster & Birrell; that Palmer called on Murdock on December 12, 1900, and requested him to settle up the matter, and Murdock said that he had known of the sale for some time; that later Murdock told him that Macmaster & Birrell desired to wait until they obtained certain moneys from the sheriff, and requested that until then no confirmation order be entered; that Palmer applied for the order of confirmation, when he ascertained that Murdock, on the 16th of January, had received money from the sheriff, but neglected to apply it on the judgment; that on March 14, 1901, Palmer again called on Murdock, and requested him to close up the matter, and Murdock said that he had notice that the order of confirmation had been entered; that some days later Murdock called on Palmer, and stated that the plaintiff was willing to pay in settlement the amount of the judgment, $33, and...