20 Wash. 413 | Wash. | 1898
The opinion of the court was delivered by
This action was instituted by the plaintiffs, as assignees of the respective judgment debtors in three several mortgage foreclosure proceedings, to recover the difference between the amount bid for the property at the respective foreclosure sales and the sum actually paid in satisfaction of the judgments therein. Three separate causes of action are embraced in the complaint, all based upon the same character of facts and subject to the same rules of law. The complaint, for a first cause of action— and the other two causes are similar—alleges that at all
In the case of State ex rel. Thompson v. Prince, 9 Wash. 107 (37 Pac. 291), this court held that a sheriff is not entitled to commissions upon a sale of mortgaged premises under a decree of foreclosure, where the mortgaged property is bid in by the plaintiff and the amount bid applied in satisfaction of the judgment, no money passing through the sheriff’s hands; and in Soderberg v. King County, 15 Wash. 194 (45 Pac. 785, 55 Am. St. Rep. 878), it was-held that, where a sheriff upon a sale of mortgaged premises under a decree of foreclosure, and where the property was bid in by the plaintiff in the foreclosure suit, collected commissions on the sale and paid the same over to the county treasurer, under the mistaken belief that it was his duty so to do, the judgment debtor could recover the amount so paid to the county treasurer, in an action against the county. The only difference in the facts be
In Mitchell v. Weaver, supra, the question now under consideration was directly involved. The action in that case was brought by the execution debtor to recover from the purchaser, who was the plaintiff in execution, the sum of $744, which was wrongly included in the judgment and which judgment had been corrected by proper proceedings in court; and the court held that the plaintiff was entitled to recover, remarking:
“ He [the defendant] cannot claim title and yet refuse to pay what he promised. He must do one thing or the other, repudiate the sale or pay the full amount of his bid. He did not pay for it, for he simply receipted to the sheriff, and as he receipted for $744 more than his judgment amounted to, he has in his hands that much more money than he is entitled to, and must pay it to the person whose land he has secured.”
And the other two cases cited are to the effect that an action like this can be maintained, though in neither of them is the sufficiency of the complaint discussed.
Our conclusion is that the complaint states a cause of ■ action in favor of the plaintiffs; and the judgment is therefore reversed and the cause remanded to the lower court, with directions to overrule the defendant’s demurrer.
Dunbar, Gordon and Eeavis, JJ., concur.