Singly v. Warren

• Decision Date: 10 January 1898
• Citation: 51 P. 1066,18 Wash. 434
• Parties: SINGLY v. WARREN ET AL.
• Court: Washington Supreme Court

51 P. 1066

18 Wash. 434

SINGLY v. WARREN ET AL.

Supreme Court of Washington

January 10, 1898

Appeal from superior court, Spokane county; Norman Buck, Judge.

Action by D. H. Singly against Delos Warren and others. From a judgment for defendants, plaintiff appeals. Reversed.

Crow &amp Williams and Blake & Post, for appellant.

Graves Wolf & Graves, for respondents.

ANDERS J.

This action was instituted by appellant to recover the possession of certain real estate in the county of Spokane. Both parties claim title through Albert English and Sylvester S. Callahan, each of whom was formerly owner of different portions of the land. On April 28, 1894, English and Callahan sold the premises in controversy to one Rilda Grinstead, a part of the consideration being the assignment and transfer of a certain judgment held by Miss Grinstead against the South Harbor Land & Improvement Company. In September of the same year, English and Callahan sued Miss Grinstead, in the superior court of Spokane county, to enforce a vendor's lien upon the land, on account of alleged misrepresentations on her part concerning the value of the judgment aforesaid. They recovered a judgment against her in accordance with the prayer of the complaint. She thereupon appealed to this court, where the judgment was reversed, on October 21, 1895, and their complaint was ordered dismissed, after a hearing upon the merits. The judgment in the lower court was rendered on June 4, 1895. Prior to that time, and while the cause was pending in the superior court, and on January 25, 1895, Miss Grinstead conveyed the land in question to one Ames, who, on February 25, 1895, conveyed it to the appellant here. It is through these conveyances that the appellant claims title. Miss Grinstead's appeal was effected on July 18, 1895, by the filing of notice of appeal and a bond for costs, which did not supersede the judgment. After the appeal had been effected, and on July 20, 1895, the land was sold by the sheriff upon an execution issued upon the judgment to Albert English, one of the plaintiffs in that cause, for the sum of $360, but no deed has ever been executed by the sheriff in pursuance of said sale. On September 25, 1895, and while said appeal was pending in this court, English signed and acknowledged a deed of the land so purchased by him to his co-plaintiff, Callahan, and the latter on the same day signed and acknowledged a like deed to the respondent Tindall. These deeds were not recorded until after the opinion of this court had been rendered, and were then presented for record by Callahan. The respondents Warren claim to hold as tenants of Tindall. It appears from the testimony of Callahan and Tindall that the land was sold to Tindall for the sum of $3,500, $355 of which was paid in cash at the time of the transfer, and that a debt of some 10 years' standing, of Callahan to Tindall, evidenced by a promissory note, was applied on the purchase price, the same amounting at that time to $750, and likewise an account of some $50 due Tindall from Callahan on account of hogs sold. It also appears that the sum of $21 due for grain sold Callahan, and the sum of $75 for hay, were also applied in part payment for the land. No further payments are shown or claimed to have been made by Tindall before he learned of the reversal of the judgment, and the alleged final payment was not in fact made until a few days previous to the trial of this cause. Tindall testified that at the time he received his deed he had no actual knowledge of the pendency of the appeal, although he admitted that he was cognizant of the litigation, and had or saw copies of the pleadings in the case and the judgment of the trial court. At the time the appeal was effected the defendant in that action filed a lis pendens in the office of the county auditor of Spokane county. On the close of the evidence in this case both parties moved the court for a peremptory instruction requiring the jury to find in their favor. Appellant's motion was overruled, and respondents' motion was sustained, and the court thereupon discharged the jury, and gave judgment in favor of the respondents. A motion for a new trial having been made and overruled, the cause was appealed to this court. It will thus be seen that the sole question presented for our determination is whether the respondent Tindall obtained a title by his deed from Callahan which was not affected by the reversal of the judgment upon which it was based; or, in other words, whether Tindall is a purchaser in good faith, within the purview of the law.

Our statute provides: "If by a decision of the supreme court the appellant becomes entitled to a restoration of any part of the money or property that was taken from him by means of the judgment or order appealed from, either the supreme court or the court below may direct an execution or writ of restitution to issue for the purpose of restoring to the appellant his property, or the value thereof. But property acquired by a purchaser in good faith, under a judgment subsequently reversed, shall not be affected by such reversal." Laws 1893, p. 132, § 27. And, in contemplation of this section, an execution plaintiff is not a purchaser in good faith, in the sense that he is entitled to retain property purchased by him under a judgment subsequently reversed. His title is devested by the reversal, and the parties to the litigation are restored to the same position in which they were prior to the rendition of the judgment. Benney v. Clein, 15 Wash. 581, 46 P. 1037. This doctrine is in harmony with the great weight of authority outside of this state, and it is frankly conceded by the learned counsel for the respondents to be in consonance with the spirit and meaning of our statute. "Upon the reversal of the judgment against him," says Mr. Freeman, "the appellant is entitled to the restitution from the respondent of all the advantages acquired by the latter by virtue of the erroneous judgment. The successful appellant is entitled to a restitution of everything still in possession of his adversary in specie; not the value, but the thing. If money has been collected by the plaintiff in the judgment, whether under execution or not, an action lies against him to recover it back." Freem. Judgm. (4th Ed.) § 482. See, also, Bank of U.S. v. Bank of Washington, 6 Pet. 17.

The contrary rule is maintained in Bickerstaff v. Dellinger, 1 N. C. 299, and by some decisions in the state of Kentucky, beginning with Parker v. Anderson, 5 T. B. Mon. 451. And the same principle was asserted by Mr. Justice Field in Canal Co. v. Gordon, 2 Abb. (U. S.) 49, 22 F. Cas. 828, and by one of the judges in the case of McAusland v. Pundt, 1 Neb. 211. In no other cases that we are aware of has this rule ever been adopted. But that a stranger to the record, who, in good faith, purchases land at an execution or judicial sale under a valid judgment, which has not been superseded by the filing of a proper bond, acquires rights which are not affected by a subsequent reversal of the judgment, is a doctrine universally announced by the courts. This rule has been recognized from very early times, and the reason of it is, as stated in Manning's Case, 8 Coke, 94b, and many subsequent cases, that if the title obtained by the purchaser in such cases were avoided the vendee would lose both his property and his money, and great inconvenience would therefore follow, as no one would buy of the sheriff in such cases, and execution of judgments would not be done. Corwith v. Bank, 15 Wis. 317. See, also, Woodcock v. Bennet, 1 Cow. 734. Our law, like the law elsewhere, permits judgments and decrees to be enforced during the pendency of appeals, unless a bond to stay proceedings is given as required by law, and the courts have always construed the law so as to inspire confidence in judicial and execution sales by protecting bona fide purchasers at such sales from loss or injury by reason of erroneous judgments or decrees. It would be unjust to require such purchasers to suffer loss on account of errors of the trial courts of which they had no knowledge, and which they were nowise instrumental in producing; and such a requirement would be contrary to the settled policy of the law to encourage bidding at judicial sales, and to prevent the property of debtors from being sacrificed thereat. Freem. Judgm. (4th Ed.) § 484; Marks v. Cowles, 61 Ala. 299.

But it is strenuously contended on behalf of the respondents that, inasmuch as Tindall was a stranger to the judgment which was reversed, he is entitled to the same protection which is extended to a third person who is a bona fide purchaser at a judicial sale, and the following cases are cited in support of this contention: Lovett v. Reformed Church, 12 Barb. 83; McAusland v. Pundt, 1 Neb. 211; Taylor's Lessee v. Boyd, 3 Ohio, 354; Guiteau v. Wisely, 47 Ill. 436; Horner v. Zimmerman, 45 Ill. 14; Wadhams v. Gay, 73 Ill. 415; McCormick v. McClure, 6 Blackf. 466; McBride v. Longworth, 14 Ohio St. 351; Little v. Bunce, 7 N. H. 485; Bank of U.S. v. Bank of Washington, 6 Pet. 16.

It must be conceded that the language used in some of these decisions affords some foundation for the respondents' contention. But it appears to us that, when considered in the light of the facts presented by the record, they do not go to the extent claimed for them on the part of respondents. In Lovett v. Reformed Church the question at issue was which of two sets of individuals were the rightful officers of the corporation. The first party, having by a decree of the chancellor been declared the rightful officers, under the authority given such officers by law, executed a mortgage on the corporate property. Thereafter the other party appealed from the decree of the...