165 P. 1174 | Or. | 1917
Lead Opinion
delivered the opinion of the court.
“If the purchaser at a foreclosure sale has paid the purchase money and there is a subsequent redemption, his rights are determined by treating him as a mortgagee in possession to the extent of the price paid by him, with interest, and must account for the rents and profits.”
The statute relating to redemption reads thus:
£ ‘■The judgment debtor, or his .successor in interest, may, at any time prior to confirmation of sale, and also within one year after confirmation of sale, redeem the property on paying the amount of the purchase money, with interest thereon at the rate of ten per cent per annum from the date of sale, together with the amount of any taxes the purchaser may have been required to pay thereon”: Section 248, L. O. L.
“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.”
"We have been unable to find any authority in conflict with this doctrine. Ve conclude, therefore, that the demurrer should have been sustained. If this works an injustice, and we think it does, the remedy lies with the legislature and not with the courts.
“If a mortgagee himself occupies the premises, especially if they consist of a farm under cultivation, upon which labor and money must be bestowed to produce annual crops, he will be charged with such sums as will be a fair rent of the premises, without*258 regard to what he may realize as profits from the use of'it.”
The judgment will be reversed and the cause remanded for further proceedings not inconsistent herewith. Reversed and Remanded,
Denied. July 24, 1917.
Rehearing
Petition eor Rehearing.
(165 Pac. 1184.)
On petition for rehearing. Rehearing denied.
Mr. George M. Roberts, for the petition.
Mr. Lincoln M’Gormach, contra.
Department 1. Mr. Justice Burnett delivered the opinion of the court.
“If the judgment debtor redeem at any time before the time for redemption expires the effect of the sale shall terminate and he shall be restored to his estate”: Section 249, L. O. L.
Beginning with Cartwright v. Savage, 5 Or. 397, the court has consistently held that this means complete restoration to the judgment debtor of his estate including as in that case what the purchaser had actually received from the realty while he had it in his custody. By the redemption the creditor has received his own with interest and such taxes as he may have paid on the holding during his occupancy. To allow him to take more out of the actual proceeds of the premises would be to sanction extortion permitting him to reap where he had not sown. By a Socratic argument in the Cartwright Case Mr. Justice McArthur disposes of the matter thus:
‘ ‘ How can the property be said to be restored to its original condition, if, when redeemed, the judgment*260 debtor is obliged to take it back, denuded of tbe crops wbich he himself has sown, and wbich, but for the accidental circumstance that the sale was made just before harvest, he himself would have reaped?”
There is, therefore, statutory sanction for returning to the redemptioner tbe rents and profits accruing between sale and redemption for they are an inseparable adjunct of tbe estate wbich is restored to him. No counterpart to this is found in tbe Code by wbicb the purchaser may pile up disbursements in operating tbe premises and charge them to tbe judgment debtor.
“It shall not be deemed waste for the person in possession of tbe property at tbe time of sale, or entitled*261 to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used; or to use it in the ordinary course of husbandry; or to make the necessary repairs to building thereon; or to use wood or timber on the property thereof; or for the repair of fences; or for fuel in his family while he occupies the property. ’ ’
The expenses the purchaser incurs under this section are for his own benefit and he cannot charge them to the redemptioner. What more of substantial gain he makes out of the property follows the estate as part of it when it is restored to the redemptioner. All his disbursements perchance may come to naught when the redemptioner pays to the sheriff after due notice the amount of the bid plus interest and taxes paid. The utmost that can be said is that for actual profit the purchaser must account, but for no more.
It has been aptly said that we cannot add to the burdens of the redemptioner. Neither can we increase his benefits where none have accrued; and unless he can show that the purchaser while in possession has acquired a net profit there can be nothing due from the latter. In short, the purchaser cannot load upon the redemptioner an amount of expenses which would virtually improve the original owner out of his property. Neither can the latter recover from the former something not realized by the occupation of the premises in excess of the permissible waste allowed by Section 251, L. O. L. The language quoted in the former opinion from 2 Jones on Mortgages (6 ed.), Section 1122, refers to a mortgagee in possession to which situation it must be limited and must be distinguished from the condition where a purchaser has taken charge of the property under the statute. The one who buys
Behearing Denied.