14 Wash. 192 | Wash. | 1896
Lead Opinion
The opinion of the court was delivered by
This case was tried and an opinion rendered in favor of the appellant on January 11, 1895 (10 Wash. 573, 39 Pac. 98). A petition for rehearing was filed, a rehearing ordered, and the cause has been again argued before this court.
The rehearing was granted on the claim that the original decision conflicted with the subsequent decision rendered in this court in the case of Hardy v. Herriott, 11 Wash. 460 (39 Pac. 958), in which latter case, it is asserted, this court decided that under our statute the title of a mortgagor upon a foreclosure sale becomes extinguished, and the purchaser at such sale acquires the full legal title. It is contended that
What was really decided in Hardy v. Herriott was that a purchaser upon a foreclosure sale, who takes possession of the premises and leases them to another, cannot be required to account, at the suit of the mortgagor to redeem, for the rents and profits arising from the use and occupation of such premises for the period between sale and redemption. This, it was especially announced in the opinion rendered by the court, was the sole question to be determined. Arguendo, the writer of the opinion announced the rule that the purchaser at such sale acquires the full legal title carrying with it possession and the rights to the rents and profits, and, it is true, entered into a discussion of this technical question and cited many authorities to sustain that proposition.
This same question, viz., the right of the purchaser to receive the rents of the land during the time between the sale and the redemption, again came before this court in the case of Knipe v. Austin, 13 Wash. 189 (43 Pac. 25), and it was again held that the right to the rents and profits accrued to the purchaser. But it was announced in that case that the technical question of whether or not the title of the judgment
“The discussion of the title proposition,” said the court in that case, “ is the discussion of a theory, and does not affect the practical fact that the legislature, regardless of the question of title, has conferred this right. So that we do not think it at all necessary to discuss that question here.”
The rights acquired by the purchaser are statutory rights; the right of the owner to redeem is equally a statutory right. It must be confessed that ■ either theory is surrounded by difficulties, for it would séem-that there is no particular virtue in a sheriff’s deed, but that under a statute like ours, which provides that the purchaser shall go into possession and receive the rents or the value of them, the thing which was sold was actually sold at the time of the execution sale, and the redemption was simply a purchase back under the provisions of the statute. On the other hand, it destroys the plain and evident meaning of the statute which grants the right of redemption, if an inci-: dent to the land is to be separated- from it or destroyed
So that, whatever’ technical expressions may be used concerning the title passing from the judgment debtor to the purchaser, the substance of the statute must be considered, and we must hold that where the statute gives the judgment debtor the fight to redeem that which was sold, it is a whole and effectual redemption which is provided for and not a redemption of a portion, or of the land itself stripped of valuable incidents, appurtenances, attachments, or whatever technical name may be applied to this incidental right’. It seems to us it would be just as consistent to hold •that the judgment purchaser could move from thé land improvements of any character and insist that the right of the creditor to redeem was limited to the redemption of the bare land. '
Concurrence Opinion
(concurring).— I concur in all that is said in the foregoing opinion, and in the result. I have become satisfied upon further investigation that the cases of Spoor v. Phillips, 27 Ala. 193; Parmer v. Parmer, 74 Ala. 285; Weathers v. Spears, 27 Ala. 455; Kannon v. Pillow, 7 Humph. 280, and Eiceman v. Finch, 79 Ind. 511, cited in Hardy v. Herriott, in support of the proposition that a purchaser at an execution sale acquires the legal title, are inapplicable to sales of that character under our law; inasmuch as it appears that by statute in Alabama, Tennessee and Indiana a purchaser at such sale is entitled to an immediate conveyance from the officer (§2916, vol. 1, Code of Alabama, 1886; §8768, Code of Tennessee, 1884; §763, Revised Statutes, Indiana, 1881), notwithstanding provision is made by statute in each of said states for subsequent redemption by the execution debtor; whereas, under our law, the purchaser does not become entitled to a conveyance until the expiration of the period allowed for redemption. Code Proe., § 515.
While the decision in Hardy v. Herriott did not require the discussion of that proposition or the announcement of a conclusion thereupon, nevertheless it was advanced as a further reason, in addition to that afforded by the statute, for concluding that the re-demptioner was not entitled to an accounting, and therefore it was something more than mere dictum.
Outside of the cases from Alabama, Tennessee and