20 Or. 126 | Or. | 1890
1. The first question presented is the respondent’s motion to dismiss the appeal. The objection taken is that both the respondent and his attorney resided in Polk county at the time of the service, and that the
2. This leaves the question presented by the demurrer to the complaint to be disposed of. The object of the action is to recover the amount realized from the sale of the property of plaintiff’s intestate over and above the amount of the decree made in the forclosure suit. Subdv. 3, section 296, Hill’s Code, directs that upon the return of the execution, the sheriff shall pay the proceeds of the sale to the clerk. There is no allegation in the complaint that the defendant failed to perform that plain duty. In the absence of some allegation by the plaintiff to the contrary, the ordinary presumption must prevail that official duty has been regularly performed. (Subdv. 15, § 776, Hill’s Code.) Upon the argument there was considerable discussion whether a demand was necessary before the commencement of the action. The rule seems to be, where the officer cannot exonerate himself by the payment of the money into court, a demand is necessary. (Murfree on Sheriffs, § 962; Sims v.
3. Defendant’s counsel suggested that the plaintiff in his representative capacity was not entitled to the money sought to be recovered for the purposes of administration, for the reason that the same is to be regarded as land and the widow of the estate would be entitled to dower therein. The better view is that the wife’s inchoate right of dower in the husband’s lands follows the surplus moneys raised by a sale in virtue of the power of sale in a mortgage executed by her with her husband, and will be protected against the claims of her husband’s creditors. (Vartie v. Underwood, 18 Barb. 561.) She has a dower in the surplus as she had in the land before sale. (Mathews v. Duryee, 45 Barb. 69.) But this right of the widow to dower in this money in no manner interferes with the right of the administrator to the possession and control of the property of the deceased, both real and personal, and to receive the rents and profits thereof until the administration is completed or the same is surrendered to the heirs or devisees by order of the court or judge thereof. (Hill’s Code, § 1120.) No doubt the county court of Polk county will at the proper time make the necessary orders in respect to this fund to fully secure her dower interest in this fund; and if an order should be made which injuriously affects her interests, it will be time enough for her to complain. In any event, the sheriff does not represent her interests, nor can her rights be litigated in this case. If the plaintiff shall hereafter apply to the county clerk of Polk county for this money and fail to receive it, he will then be entitled to such remedy as the law affords in such case against the defaulting officer. But in this action the court is unable to afford him any relief.
Let the judgment be affirmed.