MacKay v. Smith

27 Wash. 442 | Wash. | 1902

The opinion of the court was delivered by

Fullerton, J.

On July 27, 1894, the appellant entered into a contract with the state of Washington for the purchase of certain tide lands for the consideration of $255, of which $25.50 was to be paid in cash, and the balance in nine annual installments of a like amount, with interest; the state agreeing to execute a deed to her for the property when the final payment should be made. 'The appellant paid the several installments as they fell due, pursuant to the terms of the contract, up to the time of the commencement of this action, namely, May 16, 1900. On March 26, 1898, the respondent Embree obtained a judgment against the appellant for the sum of $61.70; being for costs awarded against the appellant on an appeal to this court from a judgment entered in an action tried in Clallam county, wherein the respondent was plaintiff, and the appellant was one of the defendants. On March 3, 1899, the respondent Embree caused an execution to issue out of the superior court of Clallam county upon this judgment, and caused the same to be levied upon the tide lands above mentioned, as the real property of the appellant. The levy under the writ was made on the 14th day of March, 1899, pursuant to the statute which went into effect on March 8th of that year. Thereafter, on April 15, 1899, a sale of the lands was had by the respondent sheriff, at which sale the respondent Embree became the purchaser; bidding therefor the full amount of his judgment, with the accrued costs. Return of the proceedings under the writ was made by the sheriff, and, no objections being filed thereto, the sale was confirmed by the superior court of Clallam county on the 13th day of Sanuary, 1900. The appellant thereafter, but prior to the statutory period for redeeming the property from the sale had expired,' consulted an attorney at law concerning her rights in the premises, and as to the best means of protecting her interests. The attorney examined the records and files in the cause, and advised the appellant that while, in his opinion, the attempted sale was void, as she was legally obligated to pay the judgment, and as the accrued costs were inconsiderable, the better remedy was probably to redeem the land from the execution sale. The appellant thereupon decided to redeem, and sought the advice of her attorney as to the procedure. The attorney, finding that the judgment had been entered, and the execution issued and placed in the hands of the sheriff, while the -statute of 1897, relating to sales of property under execution was in force, advised the appellant that the proper mode of redemption was to follow the procedure prescribed by that statute, which provided that a judgment debtor might redeem any real estate sold by virtue of law at any time before the execution of a deed, at. the price for which the same was sold, by paying to the clerk of the court issuing the execution the amount for which the same was sold, with interest at the rate of ten per centum per annum from the time of sale to- the time of such redemption. The appellant, acting under this advice, caused to be paid to the clerk of the court of Clallam county the amount bid at the sale, with the interest accumulated thereon at the rate prescribed by the statute. ISTotice thereof was immediately given the sheriff and to the respondent Embree. Hr. Embree refused to accept the money, contending that the payment did not effect a redemption; that the. only way the appellant could redeem was under the procedure prescribed by the statute of 1899, which provided for a redemption through the sheriff making the sale. A controversy arose between the parties, in which the sheriff participated, as to the sufficiency of the' attempted redemption, which the sheriff seems to have finally determined in the respondents’ favor, and was about to execute a deed to him for the lands, when this action was brought to restrain him from so doing. The complaint recites the transaction substantially as above outlined, and prays that the sheriff be enjoined from executing a deed of the lands'to the respondent, and for general relief. Issues were framed, and a trial had, resulting in the refusal on the part of the trial- court to grant relief in any form to the appellant, and in a judgment dismissing the action. This appeal is from that judgment.

Much space is given in the briefs of counsel to a discussion of the questions whether the appellant had such an interest in the tide lands as could be sold under a writ of execution executed as if against a fee simple title, and whether, conceding the property to be so subject to sale, it could be sold on- a writ of execution, issued while the statute of 1897 was in force, under the procedure prescribed by the statute of 1899. But the view we have taken of the case renders it unnecessary to determine these questions. Conceding that the interests of the appellant in the land were subject to sale on execution, and that the sheriff’s procedure was valid under the statutes, still we think the mistake made by the appellant, under all the circumstances of the case, was such a mistake as equity will relieve against. The good faith of the appellant cannot be questioned. Notwithstanding she had been advised that the sale.was illegal, she elected to treat it as legal, and sought by legal means to effect a redemption from the sale. She acted throughout under the advice of counsel. She pursued the statute he determined, after an examination of the facts of her case, afforded her the remedy she desired. And had his advice been correct as a matter of law, her acts would have effected a complete redemption. Nor was the respondent injured in any way by the procedure followed. There was paid into court for his use the amount of his judgment and costs, with interest, — in fact, interest at a higher rate than he would have been justly entitled to had the statute of 1899 been pursued. Manifestly, therefore, if the equities of the case are allowed to prevail, the appellant is entitled to relief.

But it is said the mistake made was a mistake of law, and that equity will not relieve against a mistake of law. This is undoubtedly the general rule; but this rule, like many other general rules, has its exceptions, as well defined as the rule itself. It is held that equity will relieve against a mistake of law where the adverse party is seeking to gain, without consideration, an unconscionable advantage through the opportunities afforded him by the mistake, and the other party is innocent of blame. Lane v. Holmes, 55 Minn. 379 (57 N. W. 132, 43 Am. St. Rep. 508); Benson v. Markoe, 37 Minn. 30 (33 N. W. 38, 5 Am. St. Rep. 816). So it is said:

“Where the legal principle is confessedly doubtful and one about which ignorance may well he supposed to exist, a person, acting under a misapprehension of the law, will not forfeit any of his legal rights by reason of such mistake.” Kerr, Fraud & Mistake; p. 399, note.

It would seem that the appellant can avail herself, under the facts of this case, of either of these exceptions. But he this as it may, certain it is that the legal principle involved, upon, which the advice of the attorney was sought, was doubtful and one upon which men learned in the law might have reasonably differed. In such a case equity willnot p ermit a penalty to he inflicted upon one making a mistake therein, where the mistake has not operated to the injury of the adverse party, and when to allow the adverse party to take advantage of it would result in an unconscionable gain. It is true, as the respondent points out, there is no direct evidence as to the value of this property. It does appear, however, that the' appellant contracted to purchase' the naked lot at a price more than four times as large as respondents’ judgment, and that it has a two-story building upon it, the upper floor of which is occupied by the appellant as a residence,’ and the lower room rented for and used as a-store. -This is indirect evidence,'at least, that the property has’a considerable value, and, when taken in connection with, the fact that the parties themselves thought the surplus over the amount of the respondents’ judgment was worthy of being contested for, justifies the conclusion that the contest is not an idle one.

Another question remain's to be noticed: ' The respondent contends that this is not a suit to redeem, and .that relief in that form cannot he had herein. As we have said, the appellant in her complaint stated the facts of her ease, and prayed for general as well as particular relief. The rule in such case is that, although the .prayer for special relief may he defective, relief will be granted under the general prayer, consistent with the equities of the case. Dormitzer v. German Savings & Loan, Society, 23 Wash. 132 (62 Pac. 862). See pages 190, 191, where the cases are collected.

The judgment appealed from is reversed, and the cause remanded, with instructions to enter a judgment permitting the appellant to redeem the property from the.execution sale.

Reavis, C. J., and White, Anders and Dunbar, JJ., concur.