Hansen v. Day

195 P. 344 | Or. | 1921

BURNETT, C. J.

1. The redemption sought is not from the mortgage, but from the sale: Higgs v. McDuffie, 81 Or. 256 (157 Pac. 794, 158 Pac. 953). When the mortgage was due, there arose a cause of suit in favor of the mortgagor to redeem the property, on paying the debt. An example of such a suit is Swegle v. Belle, 20 Or. 323 (25 Pac. 633), cited in the plaintiff’s brief. A counterpart of the mortgagor’s right was that of the mortgagee to foreclose the mortgage. In either a suit to redeem or one to foreclose, counterclaims ordinarily may be adjudicated, because such suits are based on contract, and the counterclaims usually arise out of the transaction involved, or else themselves spring from contract: Section 74, Or. L. In exercising the right of redemption, the judgment debtor is not engaged in litigation with the plaintiff in the writ of execution. It is a transaction between the judgment debtor and the sheriff, the latter of whom acts only in a ministerial or executive capacity in receiving the money and transferring it to the execution creditor. The officer has no authority to abate aught of the amount required for redemption. While he may sue the purchaser to recover the unpaid amount of his bid, Burbank v. Dodd (Or.), 4 Pac. 303, there is no such privity between them as will support a counterclaim based on the purchaser’s demand against the judgment debtor. The same lack of privity here would forbid the officer from making any deduction from the amount requisite for redemption.

2. The effect of the decree of foreclosure was to bar the mortgagor’s right to redeem as such. The privilege of redeeming after the sale and confirmation is “not an equitable, but purely a statutory legal right,” so denominated in Dray v. Dray, 21 Or. 59, 67 (27 Pac. 223). As the remedy is statutory and not according to the course of the common law, it must be pursued strictly, and as said in Doerhoefer v. Farrell, 29 Or. 304 (45 Pac. 797):

“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. ”

3. The plaintiff attempts do escape this consequence by averring that the purchaser is insolvent. Since this was challenged, it was requisite for the plaintiff to prove the same.

4. We find, upon an examination of the report as certified by the official stenographer, that the only attempt to establish the insolvency of the purchaser was that the county assessor was called, and declared that he could not find her name on the assessment-roll of Lane County. Substantially, the same statement was made by the plaintiff’s husband. It is possible, even probable, that the names of some of the wealthiest men in the state will not be found on the assessment-rolls of some of the counties. There is an utter failure of proof upon this vital question.

5. It is not enough, to give equity jurisdiction, that parties have opposing claims against each other. Some other condition, as for instance the insolvency or nonresidence of the defendant in equity, must appear as an ingredient of the cause before chancery can take notice of such an issue: 24 R. C. L. 805.

6. Considerable was said in argument about the hardship of allowing the defendant to acquire the property for about one-half of its real value. If the purchase price was grossly inadequate, it ought to have been urged as an objection to the confirmation of sale. It is enough on that point to say that, if the actual value is a factor to be considered here, it has been tested in the crucible of the sheriff’s sale and verified in the confirmation order beyond our power to question in this proceeding.

The result is that the decree of the Circuit Court is affirmed. Aeeirmed. Rehearing Denied.

McBride, Bean and Johns, JJ., concur.