Doerhoefer v. Farrell

45 P. 797 | Or. | 1896

Opinion by

Mr. Chief Justice Bean.

This is an appeal from an order sustaining a demurrer to a petition asking the court below to set aside the redemption by respondent of certain property purchased by the appellant at a foreclosure sale. The facts are that on October twenty-first, eighteen hundred and ninety-four, a decree was regularly given and entered by the Circuit Court of Union County foreclosing a mortgage made by the Oregon Gold Mining Company to one A. L. Schmidt, trustee, and ordering a sale of the mortgaged premises to satisfy the amount secured thereby. Thereafter, and on the nineteenth of February, eighteen hundred and ninety-five, the property was sold under the decree for the sum of nine thousand dollars, to Doerhoefer, who thereupon took immediate possession, but on the twenty-sixth of March, eighteen hundred and ninety-five, on motion of the plaintiff, the court -set the sale aside without disturbing Doerhoefer’s possession. On October seventh, eighteen hundred and ninety-five, and pending a resale, the court, upon the ex parte application of Doerhoefer, and without notice to any of the parties to the suit, made an order allowing him to remove a quartzmill then on the property 'to a place where it would be safe from destruction by threatened snowslides, and directed that the cost thereof, as audited by the clerk of the court, should be a charge upon the mortgaged property in favor of- Doerhoefer. In pursuance of this order the mill and machinery were taken down and removed by Doerhoefer at a cost, as audited and allowed, of three thousand one hundred and ninety-four dollars and seventy-six (eats. At a resale of the property on November nineteenth, eighteen hundred and ninety-five, under the original decree, Doerhoefer again became the purchaser for the amount of his first bid, and received another certificate of sale. The court duly confirmed the latter sale, and further decreed that Doerhoefer have a lien against all the mortgaged property “for the sum of three thousand one hundred and ninety-four dollars and seventy-six cents, in addition to the amount of the purchase price by him paid therefor in case of the redemption of said property.” In the mean time, however, and prior to the ex parte order allowing Doerhoefer to take down and remove the mill and machinery, the respondent Farrell recovered a judgment against the Oregon Gold Mining Company for six thousand dollars, and caused the same to be regularly docketed in the judgment lien docket. On January-thirtieth, eighteen hundred and ninety-six, upon application to the sheriff of Union County, Farrell was allowed to redeem the property from the sale made to Doerhoefer, by paying the sum of nine thousand eight hundred and fifty-two dollars and fifty cents, being the amount of his bid with legal interest thereon from the date of the first sale. Pending the application, Doerhoefer appeared before the sheriff and objected to the redemption, unless Farrell would pay, in addition to the purchase price, and interest, the sum of three thousand one hundred and ninety-four dollars and seventy-six cents allowed by the court as expenses for taking down • and removing the mill and machinery, which objection was overruled by the sheriff, and a certificate of redemption was thereupon duly issued to Farrell. Thereafter Doerhoefer filed this petition in the court, asking to have the redemption by Farrell set aside, and the certificate issued to him canceled. To this petition a demurrer was sustained, and Doerhoefer appeals.

Without stopping to consider the important questions of practice argued by counsel, and conceding for the purposes of this case that this proceeding is regular, we are clearly of the opinion that Farrell was entitled to redeem from the sale made to Doerhoefer without paying the amount of the expenses incurred by Doerhoefer in taking down and removing the mill. The statute provides that a lien creditor may redeem within sixty days after the date of the order confirming the sale, by paying the amount of the purchase price, with interest at the rate of ten per cent, per annum thereon from the time of the sale, together with the amount of any taxes which the purchaser may have paid thereon, and, if the purchaser be also a creditor having a lien prior to that of the redemptioner, the amount of such lien with interest: Hill’s Code, § 301. Under this section, Farrell clearly had a right to redeem by paying the purchase money and interest, unless, by the order of the court making the expenses incurred by Doerhoefer in taking down and removing the mill and machinery a charge upon the property, he became a creditor having a lien prior to that of Farrell. But we know of no rule of law under which such a practice can be maintained. The most that can be claimed for the order of the court, if valid at all, is that such expenses became a legitimate part of the disbursements in the suit to be paid out of the proceeds of the property; but the court was powerless after the sale to require the redemptioner to pay them in addition to the purchase price and interest. The right to redeem from an execution sale is a statutory right, and the court can neither increase nor lessen the burden of the redemptioner. If Doerhoefer desired to prevent a redemption without the payment of the amount expended by him under the order of -the court, he should have included such amount in his bid at the second sale; and, having neglected to do so, the court could not thereafter aid him by a- subsequent order prescribing terms upon which the redemption should be made, different from and conflicting with the provisions of the statute. It follows that the decree of the court below must be affirmed, and it is so ordered. Affirmed.