597 P.2d 1287 | Or. Ct. App. | 1979
This case involves a dispute over title to real property in Linn County which plaintiff purchased at a foreclosure sale and which defendant Margaret A. Scott, a junior lien creditor, purported to redeem from plaintiff. The issue revolves around that redemption, which plaintiff contends was invalid.
Plaintiff brought this suit to set aside the redemption on the ground that Scott had not complied with ORS 23.570(2)(b)
On remand, the trial court, on defendant’s ex parte presentation, entered a decree dated February 17, 1978, in favor of defendants. Prior thereto, one of counsel of record for defendants had conferred twice with counsel for plaintiff and had been advised of plaintiff’s intention to amend and supplement his complaint. Defendants’ counsel did not advise plaintiff’s counsel of his intention to submit a new decree to
After being advised of the entry of the new decree, plaintiff wrote the trial court on February 21, advising the court of the above facts and stating that an amended and supplemental complaint was being prepared, and requesting that further proceedings be held in abeyance until he had an opportunity to determine what to do next. On February 23, 1978, the Linn County District Attorney wrote to the court and counsel stating that on February 21, the Sheriff’s office had presented to him for approval a Sheriff’s deed prepared by Mr. Bell, one of defendants’ attorneys, in which the grantees were-Bell, Bell and Rounsefell. That letter was the first instance specifically calling the attention of the court or plaintiff’s counsel to the fact that Mrs. Scott had assigned her rights in the property to Bell, Bell and Rounsefell.
On March 1, 1978, plaintiff filed motions to set aside the decree and for leave to file an amended and supplemental complaint. Plaintiff appeals from the denial of each of those motions. Defendants’ motion to dismiss the appeal on the ground that neither of the orders is appealable was denied by this court on December 21, 1978, and we decline to reconsider those questions.
Presumably, the trial court concluded that by virtue of our former opinion reversing the summary , judgment for plaintiff, it followed that defendants
Whether plaintiff will be able to amend his complaint to allege facts which, if proven, will justify the relief he seeks, remains to be seen. We note, however, that it is now clear that Bell, Bell and Rounsefell are, and have been since no later than August 4, 1976, the owners of whatever interests defendant Scott had or acquired in the real property in question and that those attorneys acted as counsel for defendant Scott in these proceedings without advising either the trial court, plaintiff’s counsel or this court of that fact. It is true that the deed from Scott to Bell, Bell and Rounsefell was recorded August 4, 1976, prior to the filing of the complaint herein, and plaintiff’s counsel should have known of the transfer and named the grantees as defendants. It is also true that under
What has occurred here is that the dispute has been litigated with a defendant who no longer had any interest in the property at the time the suit was commenced, an appeal has been taken in the name of that party and on remand a decree has been entered in the trial court in favor of that party
Under these circumstances, we conclude that plaintiff should be given substantial latitude in amending and supplementing his complaint, and may include matters relating to the transfer of Scott’s interest to Bell, Bell and Rounsefell even though those facts might have been discoverable prior to the filing of the complaint or pursuant to discovery proceedings thereafter. We express no opinion, however, whether any facts relating to the transfer of Scott’s interest may aid plaintiff in any way in setting aside the redemption, but only that under the peculiar circumstances of this case plaintiff should be entitled to litigate them.
Reversed and remanded for further proceedings consistent with this opinion.
ORS 23.570(2)(b) provides:
"(2) A party seeking to redeem shall submit to the sheriff the evidence of his right thereto as follows:
"(b) If he is a lien creditor, a copy of the docket of the judgment or decree under which he claims the right to redeem, certified to by the clerk of the court where such judgment or decree is docketed, or if he seeks to redeem upon a mortgage, the certificate of the record thereof.”
After the trial court granted plaintiff’s motion for summary judgment, defendants filed an Answer and Affirmative Defenses, which was stricken as not having been timely filed. That pleading did not allege that Bell, Bell and Rounsefell had acquired all of the interest of defendant Scott in the property; it was, however, verified by one of them "as successor in interest to Margaret Scott.”
The decree submitted by defendants decrees that the redemption by Scott is valid, that the Certificate of Redemption issued to her is valid, that she is entitled to possession of the real property, and that the Sheriff is "directed to forthwith issue the normal Sheriffs Deed on said property to the defendant, Margaret A. Scott, or her heirs and assigns.”