Flanders v. Aumack

• Decision Date: 27 December 1897
• Parties: FLANDERS v. AUMACK et al. [1]
• Court: Oregon Supreme Court

51 P. 447

32 Or. 19

FLANDERS v. AUMACK et al. ^[1]

Supreme Court of Oregon

December 27, 1897

Appeal from circuit court, Multnomah county; Loyal B. Stearns Judge.

Action by J.C. Flanders against L.N. Aumack and others. Decree for plaintiff, and defendants appeal. Reversed.

On September 24, 1894, W.G. Jenne and wife were the owners of three certain tracts of real property situate in Multnomah county, Or.; and upon that day one E.S. Rash recovered judgment against them in the circuit court for said county which was duly docketed. On November 26, 1894, Rash bid in the property at execution sale, for less than the amount due on his judgment. On April 22, 1895, Jenne and wife conveyed said property to plaintiff, who subsequently redeemed it from the sale. Later, an alias execution was issued upon said judgment for the balance due thereon, by virtue of which the sheriff levied upon the same property; and this suit is to enjoin the defendant, who is the administrator of the estate of E.S. Rash, deceased, and the sheriff from proceeding further with the execution. The decree was for plaintiff, and defendants appeal.

E.B Watson, for appellants.

Geo. H Williams, for respondent.

WOLVERTON J. (after stating the facts).

The issues presented by the record involve a question as to the effect to be given the execution sale and redemption therefrom by the successor in interest of the judgment debtors. Plaintiff contends that it extinguished absolutely and effectually the lien of the judgment upon the premises in question, while the defendants insist that the redemption had the effect to reinstate the lien, and subject the property to a second sale for the unpaid balance of the judgment after the application thereto of the amount bid at the first sale. The identical question has been decided in Settlemire v. Newsome, 10 Or. 446, adversely to plaintiff's contention, but it is thought that decision was overruled in Willis v. Miller, 23 Or. 352, 31 P. 827; and it is strongly insisted that, if the latter does not suffice for that purpose, it should be now overruled, as unsound in principle and unsupported by the great weight of authority.

The authorities are practically uniform that a redemption by the judgment debtor of his lands sold under execution will reinstate the lien of the judgment for any balance remaining unpaid, and subject the lands to a resale to satisfy such balance. State v. Sherill, 34 Ind. 57; Allen v. McGaughey, 31 Ark. 253, 260; Bodine v. Moore, 18 N.Y. 347; Wood v. Colvin, 5 Hill, 228. Such was and is the doctrine in Iowa, and it was early held that the same result would attend a redemption by his successor in interest. See Crosby v. Elkader Lodge, 16 Iowa, 399; Hays v. Thode, 18 Iowa, 51; Ror. Jud. Sales, §§ 955-959. But in Clayton v. Ellis, 50 Iowa, 590, a more recent case from that state, Seevers, J., says: "If redemption of the whole or any parcel is made by the debtor, the judgment, to the extent of the balance due thereon, would constitute a lien on the premises in his hands, and they might again be sold on execution based on said judgment. But we see no reason why the debtor may not sell his right of redemption, and his vendee redeem by paying the amount of the bid, interest, and costs." This result, it was thought, followed from the conclusion reached in that and prior cases ( Hays v. Thode, 18 Iowa, 51, and Dewey v. Tuttle, 44 Iowa, 306), to the effect that the lien of a judgment under which real property has been sold and bid in by the judgment creditor, for less than the amount due thereon, is devested as to the unpaid balance; but the only question presented in that case was whether land sold under execution in pursuance of a decree of foreclosure of a mortgage, and purchased by the execution creditor for less than the amount of the decree, could be redeemed by the holder of the deficiency judgment, who was an heir of the purchaser; and it was held that it could not, and this upon the ground that his lien was extinguished by the sale. What was said beyond this was not necessary to a decision of the case. However, whether it be regarded as dicta or not, it has come to be regarded as settled law in that state. The decision has been approved in Hayden v. Smith, 58 Iowa, 285, 12 N.W. 289, and Todd v. Davey, 60 Iowa, 534, 15 N.W. 421. And in Moody v. Funk, 82 Iowa, 1, 3, 47 N.W. 1009, Robinson, J., says: "That the lien of the judgment would not be devested 'as to all persons' by the sale was held, in effect, in Harms v. Palmer, 73 Iowa, 446, 35 N.W. 515, Campbell v. Maginnis, 70 Iowa, 589, 31 N.W. 946, Peckenbaugh v. Cook, 61 Iowa, 478, 16 N.W. 530, and other cases; for it was said in the cases cited that, if the judgment debtor redeem, the land redeemed would become subject to the lien of the unpaid portion of the judgment. But there is a marked difference between the case of a redemption by the judgment debtor and that of a redemption by his grantee. *** If his grantee redeem, the execution creditor has no right to complain." The earlier cases in that state may therefore be considered as overruled and no longer controlling. Mr. Freeman is of the opinion that the lien is removed by the sale, and that, while it may attach after redemption as to newly-acquired property for any deficiency, it is not restored as of its original date. 2 Freem. Ex'n, § 321. In Seligman v. Laubheimer, 58 Ill. 124, it is held that under the Illinois statute a redemption by the grantee of the mortgagor, who was also a junior mortgage creditor, from a sale under a decree in a suit instituted by the prior mortgagee, foreclosing both mortgages, made for less than the amount of the senior mortgage, did not restore the lien of such mortgage for the unpaid balance, but that the redemptioner took it devested of any lien arising therefrom. These latter may be classed as in support of respondent's contention, but Simpson v. Castle, 52 Cal. 644, does not aid him, as it was rendered in view of a very different statute.

Other authorities maintain the contrary doctrine. In Titus v. Lewis, 3 Barb. 70, one Graves recovered a judgment against James Whitcomb. Execution was issued, and the lands of Whitcomb sold, and bid in by Titus for less than the judgment. Subsequently, James Whitcomb conveyed to Ansen Whitcomb, who redeemed from the sale by paying the amount of the bid and costs. Thereupon a resale of the same premises was had to satisfy the unpaid balance of the judgment, and the title under this latter sale was upheld. Under a statute which provides that, "upon such payment being made by any person so entitled to redeem any real estate so sold, the sale of the premises so redeemed, and the certificates of such sale, shall be null and void," Gridley, J., speaking for the court, says: "In this case, therefore, by the very terms of this enactment, the redemption under the first sale rendered that sale null and void; and, by necessary consequence, there having been no sale in law, there was no extinguishment of the judgment lien upon the premises. The judgment was merely paid and satisfied pro tanto, but remained a valid lien for the unpaid balance." Wood v. Colvin, 5 Hill, 228, is cited and was regarded as an authority in point, although in that case the redemption was made by the judgment debtor. In Rutherford v. Newman, 8 Minn. 47 (Gil. 28), it is held that a redemption by the successor in interest of the judgment debtor terminates the sale, and applies the proceeds as a pro tanto payment on the judgment, leaving the estate in the hands of such redemptioner in the same condition in which it would have been had the redemption been made by the judgment debtor himself. Warren v. Fish, 7 Minn. 432 (Gil. 347), and Standish v. Vosberg, 27 Minn. 175, 6 N.W. 489, are to the same effect. In Indiana it is held that a redemption by one having a conveyance from the judgment debtor of real estate previously sold at sheriff's sale annuls the sale, and restores the property to the position it occupied before the sale with the judgment lien or liens reinstated for any sums remaining unpaid. Cauthorn v. Railroad Co., 58 Ind. 214. And in Green v. Stobo, 118 Ind. 332, 20 N.E. 850, a like conclusion was reached, where an heir to the judgment debtor redeemed. See, also, Hervey v. Krost, 116 Ind. 268, 19 N.E. 125, and Goddard v. Renner, 57 Ind. 532. The case of Porter v. Steel Co., 122 U.S. 267, 7 Sup.Ct. 1206, is in harmony with the doctrine of the Indiana courts.

Upon principle, it is difficult to see wherein the rights of a successor in interest redeeming are to be distinguished from those of the judgment debtor himself. The statute gives the right of redemption to the judgment debtor or successor in interest, but declares that, when the judgment debtor shall redeem, the effect of the sale shall terminate, and he shall be restored to his estate. A conveyance by the debtor can confer no greater rights than he himself had. It cannot disincumber the property, nor give a better or superior title. The successor is not a bona fide purchaser for value but simply occupies the shoes of his predecessor, with no new or enlarged rights or privileges, and...