Kaston v. Storey

• Decision Date: 03 April 1905
• Citation: 80 P. 217,47 Or. 150
• Parties: KASTON et al. v. STOREY, Sheriff, et al.
• Court: Oregon Supreme Court

80 P. 217

47 Or. 150

KASTON et al. v. STOREY, Sheriff, et al.

Supreme Court of Oregon

April 3, 1905

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Suit by J.E. Kaston and others against William A. Storey, sheriff of Multnomah county, and another. From a decree in favor of plaintiffs, defendants appeal. Reversed.

This is a suit to enjoin the sale of real property under an execution issued on a judgment at law. The facts are these: On July 7 1902, Jennie Y. Wade obtained a decree against Lundin and wife, foreclosing two mortgages given by them on the real property in question. An execution was issued on the decree and the property sold on August 20, 1902, for more than sufficient to satisfy the decree, costs, and expenses. After the sale, and before the confirmation thereof, Leonard and Wolff commenced an action at law against Lundin and one Langford to recover money, and such proceedings were thereafter had in the action that on September 8, 1902, a judgment was recovered against Lundin and Langford, which was duly entered in the judgment lien docket on the same day. A few days later the sale under the foreclosure decree was confirmed. Before the time for redemption had expired however, Lundin and wife conveyed the mortgaged property by deed to the plaintiff Kaston, who on the 22d of August, 1903 redeemed from the sale under the Wade decree. The judgment at law in favor of Leonard and Wolff and against Lundin had in the meantime been assigned to the defendant Paxton, who, after the redemption by plaintiff, caused an execution to be issued thereon, and the real property in question levied upon and advertised for sale to satisfy the same. This suit was commenced by Kaston to enjoin such sale, and from the decree in his favor the defendants appeal.

O.F. Paxton, for appellants.

W.A. Munly, A.T. Lewis, W.Y. Masters, Waldemar Seton, and Granville G. Ames, for respondents.

BEAN J. (after stating the facts).

A mortgage of real property in this state does not pass the title, but merely creates a lien. Anderson v. Baxter, 4 Or. 105; Sellwood v. Gray & De Lashmutt, 11 Or. 534, 5 P. 196. The legal title remains in the mortgagor or his successor in interest until a sale under a foreclosure decree has ripened into a title by the execution and delivery to the purchaser of a sheriff's deed in due course of law. Dray v. Dray, 21 Or. 59, 66, 27 P. 223. Therefore, at the time the judgment of Leonard and Wolff against Lundin was recovered and docketed, the legal title to the property was in Lundin, subject to the inchoate right of the purchaser at the foreclosure sale, and the judgment became a lien on such property, subject to be defeated only by the consummation of such sale by the execution and delivery of a sheriff's deed. B. & C. Comp. §§ 205, 207; 2 Freeman, Executions (3d Ed.) § 182; 2 Freeman, Judgments (4th Ed.) § 349; Curtis v. Millard & Co., 14 Iowa, 128, 81 Am.Dec. 460; Barnes v. Cavanagh, 53 Iowa, 27, 3 N.W. 801. The redemption by the plaintiff as the successor in interest of the judgment debtor, however, put an end to any further proceedings to enforce the decree, defeated the inchoate right or title of the purchaser, and restored the property to the same condition as if no sale had been attempted. B. & C. Comp. §§ 249, 427; Cartwright v. Savage, 5 Or. 397; Settlemire v. Newsome, 10 Or. 446; Flanders v. Aumack, 32 Or. 19, 51 P. 447, 67 Am.St.Rep. 504. The redemption obliterated every effect and consequence of the foreclosure sale, and the parties to this suit now stand in precisely the same position, so far as the right of the defendants to proceed on the judgment at law is concerned, as if there had been no proceedings to enforce the decree, and Lundin had, subsequent to the recovery and docketing of the judgment at law, conveyed the property to the plaintiff. In such a case the property would unquestionably be subject to the lien of the judgment and liable to a sale on the execution thereunder.

The plaintiff contends, however, that, as the judgment of Leonard and Wolff was obtained pendente lite and after the sale under the decree of foreclosure, it is effectually barred by such decree. Reliance is had in support of this position on Williams v. Wilson, 42 Or. 299, 70 P. 1031, 95 Am.St.Rep. 745. That case is essentially different from this. It was a suit to foreclose a mortgage. A judgment against the mortgagor had been recovered and docketed subsequent to the execution of the mortgage and prior to the commencement of the foreclosure suit. The judgment lien creditor was made a party to the suit. He appeared and set up his judgment by answer or cross-complaint, and secured a decree that the proceeds of the sale of the...