Vaughan v. Canby Canal Co.

137 P. 784 | Or. | 1914

Statement by

Mr. Justice McNary.

The purpose of this proceeding is to procure an order for the cancellation of a judgment. In December, 1910, plaintiff obtained a judgment in the Cireoit Court of Multnomah County against defendant for $644.80 and costs and disbursements. On March 14, 1911, a transcript of the judgment was docketed in the office of the county clerk of Clackamas County. Concurrently in time plaintiff caused an execution to be issued upon the judgment, and a levy to be made upon a tract of land owned by defendant in Clackamas County containing about 27% acres. As required by statute, the property was advertised for sale, and sold under the execution on May 13, 1911. At the sale of the premises, plaintiff was the successful bidder, having offered a sum equal to the amount of his judgment, costs and disbursements. The sheriff issued to plaintiff a certificate of sale, which was by plaintiff recorded in the records of Clackamas County. The return of the sheriff recites the history of the transaction, which was conducted in accordance with the statute. No motion for or objection to a confirmation of the sale has ever been filed, and the judgment remains unsatisfied. On March 14, 1913, the defendant filed a motion for an order canceling the judgment, supporting the application by an affidavit containing a recital of the proceedings that had been taken. Plaintiff, so far as the record discloses, made no more than oral objection to the motion. On the 31st of the month the motion was by the court overruled.

Counsel for the defendant assumes the position that the purchase of the property at the execution sale ipso facto operated to extinguish the judgment and for that reason defendant is entitled to have an order of cancellation. Subdivision 3 of Section 241, L. O. L., in part provides: “Upon the return of the execution, the sheriff shall pay the proceeds of the sale to the clerk, who shall then apply the same, or so much thereof as may be necessary, in satisfaction of the judgment.” By the mandate of this statutory provision, the clerk is required to apply the proceeds of the sale to the satisfaction of the judgment. If, however, the successful bidder is the judgment creditor, still the clerk must apply the amount of the bid to the satisfaction of the judgment. Should the purchaser at the execution sale be the judgment creditor, who bid a sum of money equal to the judgment, costs, and disbursements, as in this case, the sum so bid must be applied to the satisfaction of the judgment. A reasonable interpretation of the statute warrants the decision that a judgment becomes extinguished upon the return of the execution showing a bid equal to the judgment, plus accrued interest, costs, and disbursements. If the bid of a judgment creditor is less than the amount due, the sum offered and accepted must be applied pro tanto in payment of the judgment. Under certain conditions a judgment creditor or other successful bidder at an execution sale may be relieved from a bid, but nothing appears in this case to suggest such a contingency. The record is nude of any matter that would inspire the court to release plaintiff of the purchase of the property at the execution sale, and therefore it would be working a positive wrong upon defendant to permit plaintiff to sit up supinely and hold his judgment over defendant without a showing that would quicken the court to action. The proceedings sanctioned by statute with reference to the confirmation of the sale relate to the title of the property and cannot be confounded with those agencies that work an extinguishment of the judgment. Defendant shall have an order directing the clerk of Multnomah County to satisfy the judgment.

Reversed.

Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice Eakin concur.