Moore v. Boise Land & Orchard Co.

• Decision Date: 28 May 1921
• Citation: 34 Idaho 50,198 P. 753
• Parties: CRAWFORD MOORE, Trustee, Plaintiff and Respondent, v. BOISE LAND AND ORCHARD COMPANY, a Corporation, et al., Defendants and Respondents, and M. F. DEAN, Intervenor and Appellant
• Court: Idaho Supreme Court

198 P. 753

34 Idaho 50

CRAWFORD MOORE, Trustee, Plaintiff and Respondent, v. BOISE LAND AND ORCHARD COMPANY, a Corporation, et al., Defendants and Respondents, and M. F. DEAN, Intervenor and Appellant

Supreme Court of Idaho

May 28, 1921

PLEADING AND PRACTICE-RESTITUTION.

The remedy of restitution requires restoration of property which one has lost, on account of the execution of an erroneous judgment, by the party who has obtained it.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Carl A. Davis, Judge.

Proceeding for restitution by judgment creditor against purchaser at execution sale. Judgment reversed, with direction to dismiss.

Judgment reversed, with direction. No costs awarded.

S. T Schreiber, for Intervenor and Appellant.

A party obtaining through a judgment before reversal any advantage or benefit must restore what he got to the other party, after the reversal. (Reynolds v. Hosmer, 45 Cal. 616 628; Reynolds v. Harris, 14 Cal. 667, 681, 76 Am Dec. 459; Cowdery v. London etc. Bank, 139 Cal. 298, 96 Am. St. 115, 73 P. 196.) "Upon the reversal of a judgment, a sale to the plaintiff of the defendant's property for the satisfaction of the judgment, in whole or in part, will be set aside." (Barnhart v. Edwards, 128 Cal. 572, 576, 61 P. 176.)

Moore, trustee, assumed the risk of the ultimate reversal of any or all of the judgments by the supreme court. (Two-good v. Franklin, 27 Iowa 239.)

The sale price may be recovered back by the judgment debtor after the judgment has been reversed on appeal. (State Nat. Bank v. Ladd (Okl.), 162 P. 684; Gay v. Smith, 36 N.H. 435, 436.)

"If the plaintiff in execution or his attorney is the purchaser, the reversal of the judgment puts an end to his title." (Stroud v. Casey, 25 Tex. 740, 78 Am. Dec. 556; Peticolas v. Carpenter, 53 Tex. 23, 29; Singly v. Warren, 18 Wash. 434, 63 Am. St. 896, 51 P. 1066; Marks v. Cowles, 61 Ala. 299.)

A judgment creditor who purchases at his own sale is chargeable with notice of all irregularities and he is not a bona fide purchaser. (Boos v. Morgan, 130 Ind. 305, 30 Am. St. 237, 30 N.E. 141.)

Ira E. Barber and Edwin Snow, for Respondent.

The liability is only for what plaintiff received on the execution. Restitution can be compelled only to the extent that the parties have profited by the judgment. (Gott v. Powell, 41 Mo. 416, 417; Colburn v. Yantis, 176 Mo. 670, 75 S.W. 653; Brown v. Curtiss, 155 Mo.App. 376, 137 S.W. 24; Peck v. McLean, 36 Minn. 228, 1 Am. St. 665, 30 N.W. 759.)

Where the plaintiff becomes the purchaser at a sale and the judgment is subsequently reversed, the only restitution which the court will compel is restitution of the estate in the land which was lost by reason of the erroneous judgment and sale. (Hays v. Cassell, 70 Ill. 669; Major v. Collins, 17 Ill.App. 239; Falk v. Ferdheim Brewing Co., 67 Kan. 131, 72 P. 531.)

"The defendant is, in the absence of express statute provisions, entitled to recover from plaintiff only so much as the latter has received from the execution sale, and is neither entitled to recover the value of the property nor damages." ( Kennedy v. Duncklee, 1 Gray (Mass.), 65; Peck v. McLean, 36 Minn. 228, 1 Am. St. 665, 30 N.W. 759; Robertson v. Miller, 3 N. Bruns. Eq. 78; Bryant v. Fairfield, 51 Me. 149.)

Any judgment for more than the plaintiff received is erroneous and will not be sustained. (Dowdell v. Carpy, 137 Cal. 333, 70 P. 167.)

In view of the fact that Moore received only a contingent estate in trust, that is all which intervenor can recover. (Hess v. Deppen, 125 Ky. 424, 15 Ann. Cas. 670, 101 S.W. 362; Reynolds v. Harris, 14 Cal. 667, 668, 76 Am. Dec. 459; Ft. Madison Lumber Co. v. Batavian Bank, 77 Iowa 393, 42 N.W. 331; Munson v. Plummer, 58 Iowa 736, 13 N.W. 71; Yndart v. Den, 125 Cal. 85, 57 P. 761.)

It is discretionary with the court to refuse restitution, and this particularly where the subject matter of the dispute is still a matter of contention and subject to adjudication. ( Cowdery v. London etc. Bank, Ltd., 139 Cal. 298, 96 Am. St. 115, 73 P. 196; Taylor v. Ellenberger, 6 Cal. Unrep. 725, 65 P. 832.)

Intervenor is not entitled to relief as prayed, because he is only entitled to that which he has lost by reason of the judgment below. (Ward v. Sherman, 155 Cal. 287, 100 P. 864; Barnhart v. Edwards (Cal.), 57 P. 1004; Gott v. Powell, supra.)

RICE, C. J. Budge and Lee, JJ., concur in the conclusion. McCarthy, J., sat at the hearing but took no part in the opinion. DUNN, J., Dissenting.

OPINION

RICE, C. J.

This is the second appearance of this case in this court. The opinion upon the former hearing is reported in 31 Idaho 390, 173 P. 117, where the facts are stated. Pending the appeal, the property concerned in the litigation was sold at sheriff's sale pursuant to the judgment. After the remittitur was filed, Dean presented his petition to the district court asking for restitution by Crawford Moore, purchaser at the execution sale, of the amount of the purchase price of said premises represented by the judgment of McReynolds, which this court had adjudged not to be a lien upon the property. At the hearing, it was shown that the land was bid in by Moore at the sale for the aggregate amount of his own liens and that of Rayburn, and the judgment of McReynolds, pursuant to a written agreement by which on redemption of the property, or, if not redeemed, upon the sale thereof, the judgment lien should be discharged out of the proceeds in the order of their several priorities as set forth in the decree of the trial court. Moore did not pay the amount of his bid to the sheriff in cash, but in lieu of payment there was credited against his bid the amount of his liens and that of Rayburn, and the amount of the judgment of McReynolds. By its judgment in this proceeding, the court decreed "that he, the said M. F. Dean, be and he hereby is substituted to all rights and privileges which W. D. McReynolds could or might have had under and by virtue of the sale of the premises in this cause at the sheriff's sale," and decreed that the right to which he was substituted gave him a lien upon the premises subject to those of Moore and Rayburn. It further decreed that upon the sale of said premises, Dean should be entitled to participate in the proceeds thereof to the amount of his judgment, subject to the payment of the prior liens of Moore and Rayburn.

C. S., sec. 7171 provides: "When the judgment or order is reversed or modified the appellate court may make complete restitution of all property and rights lost by the erroneous judgment or order, so far as the restitution is consistent with the protection of a purchaser of property at a sale ordered by the judgment, or had under process issued upon the judgment on the appeal from which the proceedings were not stayed; . . . ."

Appellant lost no right by the erroneous judgment, except the right to redeem under the statute by paying the amount of the prior liens, exclusive of the McReynolds judgment erroneously declared to be a prior lien, and the right to receive the proceeds of the sale in excess of such prior liens. Appellant did not seek to set aside the sale, and he would not have been entitled to such relief had he sought it. (Barnhart v. Edwards, 128 Cal. 572, 61 P. 176. See, also, Falk v. Ferdheim Brewing Co., 67 Kan. 131, 72 P. 531.)

The remedy of restitution requires restoration of property which one has lost, on account of the execution of an erroneous judgment, by the party who has obtained it. This having been an execution sale, it was necessarily for cash, and the relationship of the parties is the same as if Moore had paid the amount of his bid to the sheriff and the sheriff had distributed the proceeds of the sale in accordance with the directions of the judgment.

Moore received nothing from the transaction that he was not entitled to receive. If his lien had been declared invalid and he had received credit therefor, he would have received a credit to which he was not entitled and would have been liable to appellant Dean therefor to the extent of Dean's judgment. (Yndart v. Den, 125 Cal. 85, 57 P. 761; Patton v. Thomson, 3 Cal. Unrep. 871, 33 P. 97. See, also, Haebler v. Myers, 132 N.Y. 363, 28 Am. St. 589, 30 N.E. 963, 15 L. R. A. 588.)

Dean was not a party to the contract, pursuant to which the property was bid in by Moore, and cannot be required to become a party thereto, or to accept a substitution to McReynolds' interest in the property.

The judgment, therefore, should not be affirmed, but should be reversed, with direction to dismiss the proceeding. It is so ordered. No costs awarded.

Budge and Lee, JJ., concur in the conclusion reached.

McCarthy, J., sat at the hearing but took no part in the opinion.

DISSENT BY: DUNN

DUNN J., Dissenting.--

I am unable to agree with the conclusion reached by the majority of the court. On the trial of the main case the court decreed the sale of the northwest quarter of the southwest quarter of section 33, township 4 north, range one east of the Boise Meridian, and the application of the proceeds thereof, after the payment of the costs and expenses of sale, to the payment of certain liens as follows: First, the liens of Crawford Moore, trustee, the plaintiff in said action; second, the lien of B. E. Rayburn; third, the lien of W. D. McReynolds; fourth, the lien of M. F. Dean, appellant herein; and the residue, if any, to Dean Perkins, as receiver of the Wyoming Land and Holding Company. Dean appealed from this judgment but gave no stay bond. Pursuant to the decree said property was sold by the sheriff to the plaintiff Crawford Moore, Trustee, for the sum of $ 15,816.21, said sum being the total amount of the liens held...