Debenture Corp., Ltd., of London v. Warren

• Decision Date: 29 June 1894
• Citation: 37 P. 451,9 Wash. 312
• Court: Washington Supreme Court
• Parties: DEBENTURE CORPORATION, LIMITED, OF LONDON ET AL. v. WARREN ET AL.

37 P. 451

9 Wash. 312

DEBENTURE CORPORATION, LIMITED, OF LONDON ET AL. v. WARREN ET AL.

Supreme Court of Washington

June 29, 1894

Appeal from superior court, King county; J. W. Langley, Judge.

The Debenture Corporation, Limited, of London, England foreclosed a mortgage executed by Susan F. Warren and others. At the sale James F. Gifford became the purchaser. His demand for possession was refused, and he petitioned for a writ of assistance. From an order sustaining a demurrer to this petition, complainants appeal. Reversed.

Allen & Powell, for appellants.

Hart &amp Hart, for respondent Susan F. Warren.

HOYT J.

This appeal is from an order sustaining a demurrer to the petition of the appellants, and denying the relief therein prayed for. Respondents moved to dismiss the appeal upon the ground First, that it was not taken in time; and, second, that the bond was approved before the date of the taking of the appeal. The record fails to show that the respondents ever served notice, in writing, of the entry of the order upon the appellants; and, under the provisions of the statute of 1893 ^[1] the appeal was in time. The action of the appellants in giving the bond on appeal was in substantial compliance with such statute. The motion will be denied.

Upon the merits the only substantial question to be decided is as to when the purchaser at a foreclosure sale is entitled to the possession of the property purchased. There are other questions discussed in the brief of the respondents. They relate to the procedure adopted by the appellants, and to the parties who are entitled to inaugurate the same. In regard to these matters it is only necessary to say that, if the purchaser was entitled to possession at the time demand therefor was made on the mortgagor, the petition was sufficient to put in motion the powers of the court in aid of its process, to the end that the possession to which the purchaser was entitled thereunder should be secured to him. Upon the main question numerous authorities have been cited by the respective parties, but they furnish little aid in its determination, for the reason that its decision so largely depends upon our statute. It is contended upon the part of the respondent that the title does not pass until the expiration of the time for redemption, and that, under the general rule, the right to possession would not accrue until such title had passed. That such is the law, in the absence of any express statute upon the subject, is conceded. But we have an express statutory provision. It is found in section 519 of the Code of Procedure, which is in the following language: "The purchaser from the day of sale until a resale or redemption, and the redemptioner from the day of his redemption until another redemption, shall be entitled to the possession of the property purchased or redeemed, unless the same be in the possession of a tenant holding under an unexpired lease, and in such...