198 P. 753 | Idaho | 1921
Lead Opinion
This is the second appearance of this case in this court. The opinion upon the former hearing is reported in 31 Ida. 390, 173 Pac. 117, where the facts are stated. Pending the appeal, the property concerned in the litigation was sold at sheriff’s sale pursuant to the judgment. After the remittitur was filed, Dean presented his petition to the district court asking for restitution by Crawford Moore, purchaser at the execution sale, of the amount
C. S., sec. 7171 provides: “When the judgment or order is reversed or modified the appellate court may make complete restitution of all property and rights lost by the erroneous judgment or order, so far as the restitution is consistent with the protection of a purchaser of property at a sale ordered by the judgment, or had under process issued upon the judgment on the appeal from which the proceedings were not stayed; . ”
Appellant lost no right by the erroneous judgment, except the right to redeem under the statute by paying the amount of the prior liens, exclusive of the MeReynolds judgment erroneously declared to be a prior lien, and the right
The remedy of restitution requires restoration of property which one has lost, on account of the execution of an erroneous judgment, by the party who has obtained it. This having been an execution sale, it was necessarily for cash, and the relationship of the parties is the same as if Moore had paid the amount of his bid to the sheriff and the sheriff had distributed the proceeds of the sale in accordance with the directions of the judgment.
Moore received nothing from the transaction that he was not entitled to receive. If his lien had been declared invalid and he had received credit therefor, he would have received a credit to which he was not entitled and would have been liable to appellant Dean therefor to the extent of Dean’s judgment. (Yndart v. Den, 125 Cal. 85, 57 Pac. 761; Patton v. Thomson, 3 Cal. Unrep. 871, 33 Pac. 97. See, also, Haebler v. Myers, 132 N. Y. 363, 28 Am. St. 589, 30 N. E. 963, 15 L. R. A. 588.)
Dean was not a party to the contract, pursuant to which the property was bid in by Moore, and cannot be required to become a party thereto, or to accept a substitution to McReynolds’ interest in the property.
The judgment, therefore, should not be affirmed, but should be reversed, with direction to dismiss the proceeding. It is so ordered. No costs awarded.
Dissenting Opinion
Dissenting. — I am unable to agree with the conclusion reached by the majority of the court. On the
On the hearing of the appeal in this court said decree was affirmed so far as it affected the claims of Moore and Rayburn, but was reversed as to the McReynolds claim. Thereupon Dean filed in the district court his petition asking for restitution by Crawford Moore of the amount of the purchase price of said property represented by the lien of McReynolds, the said McReynolds’ lien having been adjudged by this court invalid.
Moore and McReynolds were cited by the district court to show cause why an order of the court should not be made directing them to make restitution in full of said amount, being $998.67, together with costs and interest from September 4, 1915. Moore appeared and answered said petition, but the proceedings were dismissed by the petitioner as to McReynolds. The substance of Moore’s answer was a denial that he or Rayburn or McReynolds had received
After hearing the testimony offered by the respective parties the court made and filed its findings of fact and conclusions of law and thereupon entered a judgment awarding Dean a lien on the above-described property, subject to the prior liens of Moore and Rayburn, and providing that upon sale of said premises the residue, if any, after discharging the liens of Moore and Rayburn, should be paid to Dean up to the amount of the balance due him, with interest from the fifteenth day of March 1915, but said judgment made no award to Dean of the money asked by him, nor of any part thereof.
Dean has appealed from said judgment and assigns four errors as follows: “First, that the decision, order and judgment of the court is contrary to the law and the evidence; second, that the court erred in admitting certain evidence over objection of petitioner, and erred in admitting exhibit 1 of plaintiff in evidence; third, that the eourt erred in overruling the motion of petitioner, intervenor, to strike the ‘answer-and-return,’ of plaintiff, Crawford Moore, trustee, from the files; and fourth, that the eourt erred in admitting evidence in support of the ‘answer-and-return,’ of Crawford Moore, trustee.”
No question is raised by either party on this appeal as to the validity of the sale of said property. While considerable attention has been paid in appellant’s brief to the subject of setting aside said sale, the prayer of his petition is that Crawford Moore, trustee, may be required to pay to appellant the amount of the McReynolds claim, namely, $998.67, with interest and costs, and the only question presented to this court is whether or not Dean is entitled to recover said amount from Moore.
The contention of Moore is that the rights of Dean are fully satisfied by having his lien moved up to the place formerly occupied by that of McReynolds, but this consideration is entirely beside the question whether or not Dean is entitled to recover the amount of the McReynolds lien on
Moore claims that he received nothing from the sale and therefore ought not to be required to pay anything on account of the failure of the McReynolds claim. He received the property, whose title he now holds, and he paid for it in part with this invalid claim. If he can hold this prop
Speaking of Moore’s lien the majority opinion says: “If his lien had been declared invalid and had been credited against his bid, he would have received a credit to which he was not entitled and would have been liable to appellant Dean therefor.” True. Then how can he escape liability for the amount of the invalid McReynolds lien after taking it over and using it as his own, obtaining credit for it against his bid as if it were his own? I can see no distinction to be properly drawn in this regard between his own lien and those that he used as his own and from which he obtained the same financial advantage as he did from his own. If he would be required to make good the loss in the one case he must also in the other.
Many authorities have been cited by counsel on both sides bearing upon the general question of restitution, but I have found only two cases that seem to be applicable to such a situation as is presented in this case. These are cited by the respondent Moore, but they clearly support the claim of appellant Dean. The first case is that of Yndart v. Den, 125 Cal. 85, 57 Pac. 761. This was a ease of mortgage foreclosure in which the plaintiff at the foreclosure sale purchased the property for the full amount of his claim. On appeal the supreme court reduced the amount of the judgment by $470.19, and in passing on the question of restitution in that case the court said: “Defendants lost no rights or property by the execution of the judgment before the right of appeal had expired, except in the single item of the excess of interest included in the judgment. Complete justice will be done defendants by repayment of this excess, to wit, $470.19.”
Under the admitted facts in this case Dean is entitled to judgment against Moore for the sum of $998.67, with interest thereon from the fourth day of September, 1915, less such proportion of the costs and expenses of the sale as may be properly charged against the McKevnolds claim. To this extent the judgment of the trial court should be modified; in all other respects said judgment should be affirmed.