Wilson v. Crimmins

• Decision Date: 30 November 1943
• Citation: 172 Or. 616,143 P.2d 665
• Parties: WILSON <I>v.</I> CRIMMINS ET AL.
• Court: Oregon Supreme Court

172 Or. 616

143 P.2d 665

WILSON

v. CRIMMINS ET AL.

Supreme Court of Oregon.

Argued November 9, 1943.

Affirmed November 30, 1943.

Execution

1. Under statute, a grantee of legal title to realty sold on execution has right to redeem.

Execution

2. Where person from whom a redemption of realty sold on execution was sought had been in possession of the realty and an accounting was necessary by virtue of his receipt of rents, and profits, a tender by redemptioner, before bringing proceeding to redeem, was unnecessary, and it was sufficient to plead a willingness to pay amount upon property to be paid to purchaser at the execution sale.

Execution

3. Where purchaser of realty at execution sale, by his accounting, indicated his unwillingness to accept amount which redemptioner admitted to be true and disputed right of redemptioner to a deed, a tender by redemptioner would have been a futile act, and purchaser, even though otherwise he would have had right to insist upon a tender, waived it by the course which he took.

Attorney and client

4. Evidence failed to establish that attorney who filed application to redeem realty sold at execution sale did so without authority from redemptioner.

Execution

5. Where purchaser of realty at execution sale collected rents from tract which was thereafter found to be homesteaded property while original owner collected rents from tract which was found to be nonexempt property, and thereafter, in a suit between original owner and purchaser, the one sum was set off against the other, purchaser, upon nonexempt tract being redeemed, was required to give credit to redemptioner for amount of rent on such property.

Abatement and revival

6. Where execution debtor claiming property as homestead brought suit against execution purchaser for rent collected by purchaser from the property and while the suit was pending conveyed the property to party seeking to redeem from the execution sale, such conveyance did not cause the suit to become fictitious

so as to constitute a fraud on the court to continue thereafter to prosecute it in view of execution debtor's statutory right to maintain suit until the conclusion thereof.

                  See 21 Am. Jur. 175
                  33 C.J.S., Execution, § 254
                

Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Tillamook County.

R. FRANK PETERS, Judge.

Action by J.M. Wilson against George Crimmins and another, wherein the plaintiff recovered a judgment and caused certain real property of defendant to be sold on execution for the satisfaction of such judgment, and thereafter Emma P. Ward, as grantee of defendant George Crimmins, served notice upon plaintiff of intention to redeem. From an order prescribing terms of the redemption, the plaintiff appeals.

AFFIRMED.

George P. Winslow, of Tillamook, for plaintiff appellant.

H.T. Botts, of Tillamook, for redemptioner-respondent.

LUSK, J.

In January, 1934, the plaintiff J.M. Wilson recovered a judgment against the defendants George Crimmins and Bertha Crimmins, his wife (the latter now deceased), and on February 24, 1940, caused to be sold on execution for the satisfaction of such judgment real property of the defendants, theretofore attached, in Tillamook County, described as Lot 5, Block 21, of Thayer's Addition to Tillamook. The property was sold by the sheriff in two separate tracts each improved with a dwelling house, one tract comprising the north fifty feet of said Lot 5, and the other the south fifty-five feet thereof. The plaintiff was the purchaser at the sale.

On the day before the sale the defendant George Crimmins filed a motion showing that he and his wife, who was then deceased, had been adjudicated bankrupts on February 23, 1933, and discharged from bankruptcy on September 5, 1934, and asking that the judgment be discharged and satisfied of record. The motion also alleges that the attached property was the defendants' homestead. On the same day a notice in writing embodying the matters contained in the motion was given to the sheriff of Tillamook County.

On March 4, 1940, the defendant George Crimmins filed objections to the confirmation of the sale on the ground, among others, that the real property sold constituted his homestead.

On October 5, 1938, the bankruptcy court had entered an order allowing the bankrupt his claim of exemption as to the whole of Lot 5 on the ground that it was his homestead, but subsequently, on August 7, 1941, the bankruptcy cause having been reopened, the referee determined that only the south 65 feet 4 inches of the lot constituted a homestead and was therefore exempt, and disallowed the claim of exemption as to the north 39 feet 8 inches of the lot. The two parcels will hereinafter be referred to, respectively, as the south tract and the north tract.

Thereafter the plaintiff filed with the court a written waiver and release of any and all claim to the south tract, and on February 7, 1942, the court sustained the objections to the sale and ordered a re-sale of the north tract. Accordingly, on March 27, 1942 a re-sale was had at which the plaintiff bid in the north tract for $350.00. The sale was confirmed by the court on April 7, 1942.

On September 24, 1942, the defendant George Crimmins conveyed the legal title to the north tract to the redemptioner, Emma P. Ward, by quitclaim deed.

In the month of January, 1943, and within the time allowed by law to redeem, the redemptioner served upon the plaintiff and filed with the sheriff of Tillamook County a notice of intention to redeem the north tract. Thereafter, the plaintiff served upon the redemptioner, and filed with the sheriff, a statement of the account in which he acknowledged the receipt of rent from said property in the amount of $84.65, but contested the right of Emma P. Ward to redeem. The redemptioner filed objections with the sheriff to the plaintiff's account, on the ground, among others, that it did not disclose the full amount of rents collected by the plaintiff, and the sheriff thereupon referred the controversy to the circuit court, in accordance with the provisions of § 6-1605, O.C.L.A. See Alpha Corporation v. McCredie, 157 Or. 88, 70 P. (2d) 46.

After a hearing the court entered an order in which it found that Emma P. Ward was entitled to redeem; that the application to redeem was in the manner and form required by the statute; that in order to redeem the redemptioner must pay to the plaintiff $350.00 with interest thereon at the rate of 10 per cent per annum from the date of the sale to the date of redemption, a total of $385.00, less credits on account of rents received by the plaintiff from the redeemed property; and that the amount of such rents is $312.32, leaving a balance of $72.68 to be paid by the redemptioner. Upon those terms the application to redeem was allowed. (The order erroneously states the balance as $72.88.)

From the foregoing order the plaintiff has prosecuted this appeal.

1. Under the statute a grantee of the legal title to real property sold on execution has the right to redeem. § 6-1602, O.C.L.A. The privilege may be exercised within one year from the date of sale by paying the amount of the purchase money with interest thereon at 10 per cent per annum from the date of sale, but the redemptioner is entitled to set off against that amount the rents accruing from the property while the same was in possession of the purchaser, upon his giving to the purchaser at least...