Vietzen v. Otis, 46 Wash. 402

46 Wash. 402 | Wash. | 1907

Rudkin, J.

On the 30th day of November, 1892, J. W. Robinson executed his promissory note in favor of Nelson Bennett, for the sum of $5,000, and mortgaged the Thurston county property in controversy in this action to secure its payment. On the 6th day of February, 1894, a further mortgage on certain real property lying in Chehalis county was given as additional security for the same indebtedness. On February 20th, 1896, G. H. Emerson, assignee of the note and the two mortgages, commenced an action of foreclosure in the superior court of Chehalis county, and on the 16th day of May, 1896, a judgment of foreclosure was entered by default, decreeing among other things, that the mortgaged premises be sold as required by law, by the sheriff of Chehalis county, at the front door of the court house at Montesano, the county seat of Chehalis cownty. On the 27th day of May, 1896, a special execution issued on the judgment, directed to the sheriff of Chehalis county and commanding him to levy upon, seize, take into execution and sell according to law, both the Thurston and Chehalis county properties, which were specifically described in the execution, or so much thereof as might be necessary to satisfy the judgment. On the 3d day of July, 1896, the sheriff sold the property in both counties at the front door of the court house in Montesano, as directed, and made return of sale to the court. On the 3d day of October, 1896, an order of confirmation was entered, and in due time a sheriff’s deed was executed to the plaintiff in the execution, who became the purchaser at the sale. Thereafter the purchaser at the sheriff’s sale conveyed to the defendants herein. This, action was commenced in the name of Robinson to quiet title to the Thurston county property, and the present plaintiffs were substituted by order of court as successors in interest to the original plaintiff. The court below found, as a matter of law, that the execution sale under which the defendants claim was valid, and entered a judgment of dismissal. From that judgment both parties have appealed. ‘

The defendants, however, do not question the form or correctness of the judgment of dismissal, but assign other and additional reasons why such a judgment was proper. These grounds we will now consider. It is first contended that the proof fails to show that the present plaintiffs are the successors in interest to the original plaintiff. The order of substitution was made after notice, and the court therein found that the original plaintiff conveyed the property in controversy 'to the substituted plaintiffs since the commencement of the action. This finding was not excepted to, nor is the order of substitution assigned as error. The order of substitution of itself, under such circumstances, would in all probability authorize the prosecution of the action in the name of the present plaintiffs, without further proof; but, in any event, we think that the conveyance during the pendency of the action was clearly and satisfactorily proved.

It is next contended that the court erred in finding that the original plaintiff was in possession of the property at the time of the commencement of the action, in not finding that the defendants were in possession, and in not dismissing the action for that reason. This contention is based on Spithill v. Jones, 3 Wash. 290, 28 Pac. 531. That case was overruled in Brown v. Baldwin, ante p. 106, 89 Pac. 483, and under the latter decision, the failure of a plaintiff to prove possession, or that the premises are vacant and unoccupied, is no longer a ground for dismissal in this form of action.

It is next contended that the defendants have paid more than seven years taxes. While more than seven years taxes have been paid or compromised, yet the first payment was made within a few days prior to the commencement of this action. Such a payment cannot avail the defendants as a defense. Tremmel v. Mess, ante p. 137, 89 Pac. 487.

It. is lastly contended that the original plaintiff has been guilty of laches in the prosecution of his action, but there is nothing in the record that would warrant a court in holding the action barred short of the period of limitation fixed by law.

This brings us to the principle question in the case, namely, the validity of the sale of Thurston county real property in Chehalis county by the sheriff of Chehalis county, and, if invalid, was the irregularity cured by the direction in the decree of foreclosure that the sale should be so made, or by the subsequent order of confirmation. Our constitution and statutes would seem to leave little room for doubt on the first question. Section 6 of article 4 of the constitution provides that the process of the superior courts shall extend to all parts of the state. Bal. Code, § 5890 (P. C. § 1278), provides that decrees of foreclosure may be enforced by execution as an ordinary decree for the payment of money; that the execution shall contain a description of the mortgaged property; that the sheriff shall proceed to sell the mortgaged property or so much thereof as may be necessary to satisfy the judgment, after giving the notice prescribed by the section relating to the sale of property under execution; that if there is a deficiency the officer shall forthwith proceed to levy upon any property,of the judgment debtor not by law exempt, and that subsequent proceedings shall conform to the provisions of law relating to sales on execution, except as to the matter of notice.

Turning now to' the law governing executions, Bal. Code, § 5195 (P. C. § 810), provides that the writ shall be directed to the sheriff of the county in which the property is situated, or to the coroner where the sheriff is a party or interested. The next section provides that the party in whose favor a judgment is rendered may have execution issued to any county in the state. Section 500, 2 Hill’s Code, under which the execution sale in question was made, provided that notice of the sale should, be posted and published in the county where the sale was to take place, and section 507, Id., that the officer conducting the sale should make return to the court out of which the execution issued, except where the execution issued out of this court, in which case the return should be made to the superior court in which the action was commenced. Construing all these provisions together, there is no escape from the conclusion that real property can only be sold on execution in the county in which the property is situated, and by the sheriff of that county, and we think that such has been the uniform practice. If we are correct in this conclusion, under the great weight of authority, the execution sale and sheriff’s deed under which the defendants claim, are null and Aroid. Rtorer, Judicial Sales, § 779; Freeman, Void Judicial Sales, § 31; 17 Cyc. 1239; 21 Century Digest, Title Execution, § 624; Casseday v. Norris, 49 Tex. 613; Moody v. Moeller, 72 Tex. 635, 10 S. W. 727; Pollard v. Cocke, 19 Ala. 188; Jenners v. Doe, 9 Ind. 461; Thacher v. Devol, 50 Ind. 30; Paulsen v. Hall, 39 Kan. 385, 18 Pac. 225; Collins v. Perkins, 31 Vt. 624.

In Pollard v. Cocke, supra, the court said:

“The question is, can the marshall of the Southern District make a valid sale in that district of land situated in the Middle District. We feel satisfied that he cannot. He is acting in the matter of such sale wholly Avithout his jurisdiction, and consequently Avithout authority. The Avant of authority to sell goes to destroy the deed, as much as though he had no execution, and this may be inquired of collaterally, for it is clearly distinguishable from those cases where the officer has power to make the sale, but proceeds irregularly in the execution of that power. In the latter case his deed must be set aside, if at all, by a direct proceeding; in the former, it is absolutely void.”

The defendants, however, contend that there is a distinction between foreclosure sales in equity and execution sales at law, and cite Cargile v. Ragan, 65 Ala. 287, where it was held, that a sale made by a register in Chancery at an improper time or place is merely irregular, and is cured by confirmation. Whatever the rule may be in jurisdictions where the chancellor has a discretion as to the time or place of sale, such rule can have no application here, where we have but one form of action for the enforcement of private rights and the redress of private wrongs, and where all judgments and decrees are enforced by the same officer, under the same statutory provisions, enacted doubtless for the protection of property owners. We are therefore of the opinion that the execution sale and the sheriff’s deed are null and void, and that no title passed thereunder.

Was the defect in the sale cured by the direction contained in the decree of foreclosure that it should be so made, or by the subsequent order of confirmation? We think not. The place where the mortgaged property should be sold, or the personnel of the officer by whom the sale should be conducted, was not an issue in the foreclosure suit, and was not before the court for decision or direction. We think its direction in that regard was in contravention of the statutes of the state, without the issues in the case, and without the jurisdiction of the court. Black on Judgments (2d ed.), § 242. Under the express provision of our statute and numerous decisions of this court, irregularities in the manner of conducting sales are the only defects cured by confirmation. We hold, therefore, that the sale in question was utterly void in its inception, and remains so notwithstanding the direction in the decree of foreclosure and the order of confirmation. The plaintiffs were entitled to the relief demanded in their complaint, but the defendants, finder repeated decisions of this court, have an equitable lien on the land for taxes paid, and the judgment quieting title must be in subordination to that lien. The amount of taxes paid up to the time of the trial appears in the record before us, but inasmuch as other payments may have been made since that time, we will not direct a final judgment.

The judgment of the court below will be reversed, with directions to enter a judgment quieting the title in the plaintiffs, subject to a lien in favor of the defendants for all taxes by them paid, with legal interest from the date of payment. The court will ascertain the amount of such taxes and direct a sale of the property to satisfy the lien, if the amount is not paid within a time to be fixed in the judgment. Reversed and remanded accordingly.

Hadley, C. J., Fullerton, Crow, Root, Mount, and Dunbar, JJ., concur.