Parker v. Dacres

• Decision Date: 04 August 1885
• Citation: Parker v. Dacres, 7 P. 893, 2 Wash.Terr. 439 (Wash. 1885)
• Court: Washington Supreme Court
• Parties: PARKER v. D'ACRES AND OTHERS.

7 P. 893

2 Wash.Terr. 439

PARKER v. D'ACRES AND OTHERS.

Supreme Court of Territory of Washington

August 4, 1885

A. E. Isham, for appellant, Hollen Parker.

Allen, Thompson & Crowley and B L. & J. L. Sharpstein, for appellees, George D'Acres and others.

TURNER, J.

This is a suit in equity, brought by the appellant, as plaintiff, in the lower court to redeem property sold under a decree of the district court foreclosing a mortgage. The complaint alleges in substance, that on the twenty-eight day of December, 1874 and ever since, the appellant was the owner in fee of the property described in the complaint; that on the second day of January, 1875, said property was sold by the sheriff at public auction, under and by virtue of the decree of foreclosure, and that the same, in separate lots, was bought at said sale by the respective defendants, the complaint describing the particular part or parcel purchased by each defendant; that afterwards, and before the expiration of six months from the confirmation of said sale, the plaintiff after giving the defendants due and legal notice that he would apply to redeem said property, tendered to the sheriff of Walla Walla county, in his office, during office hours the amount of money necessary to redeem the same; that the said sheriff refused to receive the money so tendered, or to recognize the right of appellant to redeem said land, and that the appellant now brings into court and deposits with the clerk the amount of money so tendered to the sheriff; that the defendants wrongfully and unlawfully, on the second day of January, 1875, severally entered upon the premises purchased by them at the mortgage sale, and have ever since and now hold the same; that by reason of the wrongful refusal to permit appellant to redeem, and the unlawful deprivation of his possession by the defendants, he has been damaged in rents, issues, profits, etc.; that the defendants each hold deeds to the property purchased by them at the mortgage sale made to them by the sheriff of Walla Walla county, which deeds are of record, and are fraudulent and void.

The complaint prays that the deeds executed to the defendants by the sheriff be declared null and void; that the sheriff, as a commissioner of the district court, be required to make and deliver to plaintiff a good and sufficient deed to said property, and that plaintiff be let into possession of the same; that plaintiff have and recover damages for the unlawful detention of the possession of the property and for general relief.

The defendants demurred to the complaint because (1) it does not state facts sufficient to constitute a cause of action; (2) several causes of action have been improperly united in the complaint. The lower court sustained the demurrer, and, the plaintiff declining to amend his complaint, brings the cause to this court by appeal.

The appellant bases his right to redeem the property upon the provisions of the civil practice act of 1873, c. 33 which governed his rights at the time of the mortgage sale, and of the offer to redeem. This chapter is substantially the same as chapter 34 of the Code of 1881, except that section 379 of the Code is not found in the law of 1873. The exclusion of the right to redeem from mortgage sales is made plain and unmistakable in the Code of 1881 by the addition of the last-named section. We think the same conclusion must be reached upon a consideration of the law of 1873, notwithstanding the absence of a provision analogous to that contained in section 379. Chapter 33 of the act of 1873 deals entirely with executions at law, and the right to redeem, granted by sections 364, 365, and 366 of that act, does not in terms, or by fair implication, extend to property sold in any other manner. The act explicitly defines what an execution shall be. Sections 321-323. This execution is entirely different from the order of sale issued by the clerk upon a decree of...