171 P. 197 | Or. | 1918
delivered the opinion of the court.
Plaintiffs rely chiefly on the fact that the sheriff’s deed was not issued to Frank Rogers until October 29, 1906. The sale was made on an execution based on
“If, at any time after the entry of judgment, a period of ten consecutive years shall Have elapsed without an execution being issued on such judgment during such period, no execution shall thereafter issue on such judgment, and such judgment shall thereafter be conclusively presumed to be paid and satisfied unless an execution be issued thereon within one year from the passage of this act.”
The later Illinois cases do not tend to support plaintiffs’ contention, because they are based wholly on an Illinois statute which forbids the execution of a
The Alabama case holds that when a sheriff’s deed is applied for ten years after the sale, in the absence of evidence that the purchaser has been in possession, an explanation of the delay should be offered. The doctrine of this case does not help plaintiffs. It abundantly appears that all acts of dominion over the property in dispute were exercised by S. C. Eogers at all times after the sheriff’s sale and that when the sheriff’s deed was secured his possession was actual, hostile and complete.
As we read the Kentucky case it does not hold that a sheriff’s deed must be executed during the life of the judgment under which the sale is made. In that case the sale was made in 1853; there was no satisfactory proof that the purchase price had ever been paid; the defendant in the writ continued to live on the land for seven years after the sale; the plaintiff in the writ lived in the immediate neighborhood and must have known of the occupancy of the land; it was doubtful if the purchaser had ever been in possession, but if so, he had given up possession prior to the Civil War; the sheriff’s deed was executed in 1894, forty-one years after the sale. It was held that a conclusive presumption should be indulged that the debtor had redeemed from the sale.
In Talbot v. Cook, 57 Or. 535, 538 (112 Pac. 709), Mr. Justice Burnett discusses Dixon v. Dixon, 89 App. Div. 603 (85 N. Y. Supp. 609), and distinguishes the New York law from the Oregon law on another ground which is conclusive of this branch of the controversy. His opinion states:
“No limitation is expressly provided by our Code against the- time within which a sheriff may execute a deed to the purchaser at a foreclosure sale.”
The statute in force when the sheriff’s deed to Prank Bogers was executed, Section 1035, B. & 0. Code, is as follows:
‘ ‘ The former sheriff shall return all process, whether before or after judgment or decree, which he has fully executed, and shall complete the execution of all final process which he has begun to execute: Provided, that in all cases where real property has been or may be sold under execution by any sheriff, and he shall fail or neglect during his term of office, by virtue of the expiration thereof, or otherwise, to make or execute a proper sheriff’s deed conveying said property to the purchaser; or if through mistake in its execution, or otherwise, any sheriff’s deed shall be inoperative, the sheriff in office at any time after such purchaser shall be entitled to a deed shall execute such conveyance, and such conveyance so executed shall have the same force and effect as if made by the sheriff who made the sale. ”
A fair construction of this statute negatives this contention of plaintiffs. The sheriff is required to
Mr. Bennett is not subject to criticism for suggesting a sale under the Eichold and Miller judgment in lieu of the burdensone and expensive remedy of foreclosure. The result was a credit to Eichold and Miller of $13.75 in excess of the expenses of sale. The Rogers mortgage was the first lien on the land. The Eichold and Miller judgment was an honest debt. The proceeding was not collusive, but was an effort of a
The decree of the lower court is affirmed.
Affirmed.