First Nat. Bank of Everett v. Tiffany
| Decision Date | 20 March 1952 |
| Docket Number | No. 31854,31854 |
| Citation | 40 Wn.2d 193,242 P.2d 169 |
| Court | Washington Supreme Court |
| Parties | FIRST NAT. BANK OF EVERETT, v. TIFFANY et al. |
James Tynan, Everett, for relators.
Lewis A. Bell (of English & Bell), of Everett, for plaintiff.
Two questions are presented: (a) After a real estate mortgage has been foreclosed, may the right to possession of the property during the year of redemption be asserted in this court upon a writ of review, or is there a plain, speedy, and adequate remedy by appeal? (b) Under our statutes, is the judgment debtor entitled to possession of homesteaded property during the year of redemption, the property having been sold at judicial sale after the foreclosure of a purchase money mortgage?
Relators purchased a home. It was conveyed to them by deed. The purchase money was furnished by the plaintiff. It was paid by it direct to the grantor. As a part of the same transaction, the relators executed and delivered to the plaintiff their promissory note for the purchase price and secured it by a mortgage upon the property.
Payments being in default, the trial court, on July 13, 1951, entered a money judgment against relators and a decree foreclosing the mortgage. The decree directed a sale on execution, provided that relators be foreclosed of any right to possession during the year of redemption, and awarded plaintiff possession during such period. The relators claim right of possession by reason of a declaration of homestead filed by them upon the property prior to sale. They possessed all requisites necessary to file a claim of homestead. The plaintiff claims right of possession during the year of redemption upon the ground that the mortgage foreclosed was a purchase money mortgage.
By § 4 of Art. IV of the Constitution, the supreme court is given power to issue writs of review. We have declined to issue such a writ when it seems to us that the one seeking it had a plain, speedy, and adequate remedy by appeal. We have also declined to permit parties to make use of the writ as a more brief and convenient way of taking an appeal. It is an extraordinary remedy and its issuance must be guarded against abuse. Our cases furnish no positive guide where the question of right of possession of property during the year of redemption is involved. In Pacific Savings & Loan Ass'n v. Smith, 121 Wash. 595, 209 P. 1086, 212 P. 582, the remedy by appeal was found to be inadequate, in that the question became moot before it could be decided by this court. In some of our earlier cases, writs of prohibition were entertained. We have permitted the use of the writ so many times where no general appeal had been taken that we feel a rule of practice has been established, and shall now exercise our discretion and entertain the present writ.
Plaintiff urges that, this being a purchase money mortgage, RCW 6.24.210 (Rem.Rev.Stat. (Sup.) § 602) does not apply. It is not necessary for us to decide whether, under the facts of this case, it was a purchase money mortgage. In view of our ultimate conclusion, we believe it makes no difference.
There are two factual situations which must be kept in mind when analyzing the statutes and our former decisions germane to the question. In the first, the vendor sells his real property upon contract, reserving title until the purchase price is paid. The contract usually contains provisions for cancellation and repossession upon default of its terms. Whatever other remedies the vendor may have upon default, he cannot both repossess the property and recover the unpaid balance of the purchase price. See cases from Hogan v. Kyle, 7 Wash. 595, 35 P. 399, to Russell v. Stephens, 191 Wash. 314, 71 P.2d 30; Annotation, 97 A.L.R. 1493.
In the second, the vendor conveys title to the vendee who, in turn, gives the vendor a mortgage to secure the unpaid balance of the purchase price. In the event of default, the vendor (mortgagee) cannot 'recover possession of the real property, without a foreclosure and sale according to law.' RCW 7.28.230 (Rem.Rev.Stat. § 804). If the property does not sell for the unpaid balance due on the mortgage, the vendor may, under certain circumstances, be entitled to a deficiency judgment against the purchaser, see Lassen v. Curtis, Wash., 241 P.2d 210, a remedy he does not have under the first situation.
The two situations are not interwoven; they are separate and distinct. By statute, the rights of the parties under the one or different from the rights of the parties under the other. The moment we apply the statutes and rules applicable to one, to the other, confusion results.
RCW 6.12.090 (Rem.Supp.1945, § 532) provides: 'The homestead is exempt from attachment and from execution or forced sale, except as in this chapter provided; * * *.' (Italics ours.)
The above italicized exception to exemption of a homestead from attachment, execution, and forced sale, is made definite by RCW 6.12.100 (Rem.Rev.Stat. § 533), which reads as follows:
'Execution' is simply the mode of obtaining the debt recovered by judgment. 1 Bouvier's Law Dictionary, Rawle's 3rd Revision, page 1112. It is a writ by which the judgment of the court is enforced. Mayer v. Morgan, 26 Wash. 71, 66 P. 128.
The homestead is subject to execution or forced sale (1) if the judgment represents debts secured by the liens enumerated in RCW 6.12.100, subd. 1 (Rem.Rev.Stat. § 533, subd. 1); or (2) if the judgment is based upon a debt secured by a mortgage. In all other cases, it is exempt from execution or forced sale. RCW 6.12.090 (Rem.Supp.1945 § 532). No distinction is made between a purchase money mortgage and any other kind of mortgage.
There is a legion of cases, in this state and other jurisdictions, explaining these and similar statutes. None of them, however, states the reason for the statutes better than was done many years ago in Waples, Homestead and Exemption (1893) 332, where the author said: 'Whatever the differences statutory and constructive, uniformity remains respecting the proposition that the purchaser of property for a homestead, or any other purpose, cannot have the land and repudiate the price, by means of any statutory or constitutional provision; that he can have no exemption from the debt incurred by his contract of purchase; that he cannot retain both the object and the consideration of the contract; that, according to the homely, nursery aphorism (worthy to be received as a legal maxim), he 'can't have the pudding and eat it too." (Italics ours.)
No further citation of authority is necessary to establish the fact that the property here in question was properly subject to execution and forced sale, whether the mortgage be for the purchase price or not.
Prior to execution and forced sale, the rights of the parties are governed and defined by RCW 6.12.090 (Rem.Supp.1945, § 532) and RCW 6.12.100 (Rem.Rev.Stat. § 533). The mortgaged homestead having been sold under execution or forced sale, these statutes have served their purpose and the future rights of the parties are then governed by an entirely different statute.
After execution or forced sale, the rights of the parties are governed by RCW 6.24.210 (Rem.Rev.Stat. (Sup.) § 602), which, so far as here material, reads as follows: 'The purchaser from the day of sale * * * shall be entitled to the possession of the property purchased * * * in case of any homestead selected in the manner provided by law and occupied for that purpose at the time of sale, the judgment debtor shall have the right to retain possession thereof during the period of redemption without accounting for issues or value of occupation.' (Italics ours.)
It is significant to note that this statute, defining the right to possession during the period of redemption, makes no exception in the case of a 'judgment for the price thereof' (see RCW 6.16.020) (see Rem.Rev.Stat. § 563, subd. 14); in the case of a judgment based upon the liens enumerated in RCW 6.12.100 (Rem.Rev.Stat. § 533, subd. 1); or in the case of a judgment based upon a debt secured by a mortgage, purchase money, or otherwise. Our prior cases fail to recognize this distinction.
The determinatioin of the right of possession during the period of redemption is a matter of legislative policy. In the absence of statute, the purchaser at a judicial sale is not entitled to possession until the deed is executed pursuant to the decree, and the title is finally lodged in the purchaser. Hagerman v. Heltzel, 21 Wash. 444, 58 P. 580.
In territorial days, the purchaser was given possession during the period of redemption from the day of sale. Code of 1881, § 378; 2 Hill's Code, § 519. In 1897, this section was repealed (Laws of 1897, chapter 50, p. 70 at 76), and a complete change made. The judgment debtor, as against the purchaser at the sale, was given possession and the rents, issues and profits during the period of redemption. Laws of 1897, chapter 87, p. 227; 2 Ballinger's Code, § 5299. This was, in turn, amended and a middle course adopted. The 'purchaser from the day of sale' was again given possession during the period of redemption, subject to certain provisos not here applicable and subject to the proviso: 'That in case of any homestead occupied for that purpose at the time of sale, the judgment debtor shall have the right to retain possession thereof during the period of redemption without accounting for issues or value of occupation.' Laws of 1899, chapter 53, p. 93, § 15; Rem. & Bal.Code, § 602; Rem.Code, § 602; Rem.Comp.Stat. § 602. (Italics ours.)
The statute was again amended in 1927 (Laws of 1927, p. 74, § 1; Rem.Rev.Stat. § 602...
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