| Or. | Mar 15, 1881
By the Court,
This is an action upon an undertaking on appeal. The appellant foreclosed a mortgage executed by "W. ~W. Page and others, upon certain lots described in the complaint, and a decree was rendered accordingly. The lots were sold by the sheriff, and the plaintiff became the purchaser and entitled to the possession thereof. Subsequently the circuit court confirmed the sale, and Page appealed from the order of confirmation to the supreme court, and in order to prosecute his said appeal,' filed an undertaking, with the respondent and Gleason as sureties, whereby, among other things, and in addition to becoming bound for damages, costs and disbursements, to be recovered in the supreme court, it is alleged that the sureties did undertake and agree that if the said order of confirmation, or any part thereof, should be affirmed by the supreme court, that then the said Page, appellant, should pay to the plaintiff the value of the use and occupation of said premises, from the time of said appeal, to wit: from the 2d day of July, 1878, until the delivery of possession of said premises to the plaintiff, not to exceed the sum of five hundred dollars. That said Page continuously occupied said premises from July 2, 1878, until October 2, 1879; that the reasonable value of such occupation is the sum of four hundred and fifty dollars, and that payment has been demanded and refused. The circuit court sustained a general demurrer, and rendered judgment, from which appellant appeals to this court.
From the complaint it appears that the undertaking not only provides for all costs, damages and disbursements which may be awarded against the appellant, but for the purpose of continuing the use and occupation of the premises by appellant, it further undertakes that if the order of confirmation should be affirmed, to pay to the plaintiff the value of the use and occupation thereof.
For the purpose of staying proceedings and continuing the use and occupation in the appellant, under subdivision 2 of section 528, the instances in which the undertaking shall provide for the payment of the use and occupation of the property are confined to the cases specified, namely, when the judgment or decree appealed from is for the recovery of the possession of real property, or for a partition of real property, or for the foreclosure of a lien on real property, and the amount is to be ascertained and fixed by the court. In all these cases the possession of the real property remains in the appellant, upon the filing of such undertaking on appeal,
Now, the undertaking upon which this action is brought was not for any of the cases specified above. There was no appeal from the decree for the foreclosure of the lien upon the lots. The validity of the decree, or the grounds upon which it was rendered, are not questioned. The lots were sold by the sheriff, by virtue of an execution under the decree, and the appellant became the purchaser, and at the ensuing term of the court moved and obtained an order of confirmation, from which Page appealed, and filed the undertaking upon which this action is brought.
The objection to the order of confirmation was from some irregularity in the sale, and if the objection had been sustained and the order of confirmation reversed, it would in no wise have affected the decree; it would only have vacated the sale and necessitated a re-sale of the lots. After the sale under the decree, Page was not entitled to the possession of the lots. Section 304 of the civil code regulates the matter of possession of property sold upon execution, whether upon judgments at law or decrees in equity. That section provides that u the purchaser, from the day of sale until a re-sale, or a redemption, and the redemptioner from the day of his redemption until another redemption, shall be entitled to the possession of the property purchased or redeemed, unless the same be in the possession of a tenant holding over under an unexpired lease, and in such case shall be entitled to receive from such tenant the rents, or the value of the use and occupation thereof, during the same period.” Prom this section it is plain that the appellant in this action was entitled to the possession of the property, for it was not in the possession of a tenant holding over under an unexpired lease. Page could only continue in the use and occupation of the property after the sale by the consent of the purchaser.
In Cartwright v. Savage, 5 Oregon, 399, the court say,
The undertaking filed could in no wise affect the possession, or the'right of possession, of the purchaser; nor did it confer upon Page any right to continue in the possession. If the purchaser had gone into possession of the premises after the sale, and was in the possession at the time of the order of confirmation, it would hardly be contended that this undertaking would have entitled Page to the possession; or, if Page, after the sale, had refused to yield up the possession, and the purchaser had instituted proceedings to recover the possession, that the undertaking would have been any defense to his right to the recovery of possession of the premises.
From the day of sale until a re-sale the purchaser was entitled to the possession, and if Page desired to continue in the possession until the appeal from the order of confirmation could be heard, he could only do so by some arrangement or agreement with the purchaser. He could not defeat the purchaser’s right to the possession, or continue his own use and occupation by including such additional matter in the undertaking as is made the ground of action in this complaint. The judgment of the circuit court is affirmed.
Judgment affirmed.