70 P. 709 | Or. | 1902
after stating the facts, delivered the opinion of the court.
Prom the moment the property is struck off to him he becomes a party in interest, and submits himself to the jurisdiction of the court. He may move for a confirmation of the sale, or be called before the court for the purpose of compelling compliance with its terms, and in case of the refusal of the mortgagor to surrender possession on demand he is entitled to a writ of assistance to put him in possession: Hald v. Day, 36 Or. 189 (59 Pac. 189); 1 Freeman, Ex’ns (3 ed.), § 37d; Kerr, Supp. Wiltsie, Mortg. Forec. § 590. These proceedings, however, are all under and in pursuance of the decree under which the sale was made, and for the complete enforcement of its provisions. By the decree the plaintiff in the suit is not only entitled to an execution and order for the sale of the property, but the purchaser at such sale has a right to the aid and assistance of the court in putting him into possession. Indeed, it has been doubted whether he has any other remedy (Aiken v. Aiken, 12 Or. 203, 6 Pac. 682); but, however that may be, and whatever the steps taken to obtain possession, they must practically be under and in pursuance of the terms of the decree, and in furtherance of an uncompleted sale thereunder. When, therefore, further proceedings under the decree are stayed by an appeal, the right of the purchaser to the benefit of its provisions for the purpose of obtaining possession of the property must necessarily be suspended. In such a case, if the appellant is in possession at the time of the filing of the undertaking, he is entitled to so remain until the matter is fully adjudicated in the appellate court, he and his sureties on the bond being liable for the value of the use and occupation of the premises during his possession, not exceeding a sum fixed by the court, and named in the bond. If, however, the purchaser has entered into possession prior to the giving of the supersedeas bond, the mere filing of the bond will not oust him, nor