Cantwell v. McPherson

SULLIVAN, J. This is an application to revive a judgment. The proceeding was commenced in the court below by petition on the eighteenth day of September, 1889, and alleges as a ground for such revival that the petitioner failed to get title to the land sold in satisfaction of said judgment, or to get possession thereof. To this petition a demurrer was filed, on the ground that the petition did not state facts sufficient to state a cause of action, which demurrer was sustained by the court, and judgment of dismissal duly entered. Thereafter an appeal [724] was taken to a former term of this court, and the judgment of the district court reversed. (For opinion, see ante, p. 321, 29 Pac. 102.) The facts of the case are fully set forth in that opinion, and will not be repeated here. The defendant there- . after answered the petition, and the cause was tried by the district court, and a judgment of revival duly entered, from which judgment this appeal is taken. The appellant specifies five errors of law and all are included in one, to wit: The court erred “in not sustaining the plea of the statute of limitations in behalf of the defendant.” Appellant contends that the allegations of the petition in this case must be most strongly construed against the petitioner, and, if so construed, contends that the petition does not state facts sufficient to warrant the revival of said judgment, and cites a number of cases from the supreme court of California as maintaining the rule of construction contended for. The titles of the cases cited are not given in the brief, and in that respect it fails to comply with rule 6 of the rules of this court. (32 Pac. vi.) Said rule requires the names of parties as they appear in the titles of the cases, as well as number of the volume and page, to be given. It is expected that attorneys will comply with said rule in the citation of authorities and the preparation of briefs. The rule for the construction of pleadings as laid down in the authorities .cited is not the rule that obtains in this state. Section 4207 of the Revised Statutes provides that in the construction of a pleading for the purpose of determining its effect its allegations must be liberally construed with a view to substantial justice between the parties. The pleading in this case clearly shows that this cause is not within the statute of limitations. This proceeding was brought under section 4498 of the Revised Statutes of 1887, and the part of said section applicable to this case is as follows: “If the purchaser of property at sheriffs sale, or his successor in interest, fail to recover possession in consequence of irregularity in the proceedings concerning the sale, or because the property sold was not subject to execution and sale, the court having jurisdiction thereof must, after notice and on motion of such party in interest, or his attorney, revive the original judg [725] ment in the name of the petitioner for the amount paid by such purchaser at the sale.” It is conceded by both appellant and respondent that the limitation for this action is fixed by section 4054 of the Revised Statutes of 1887, and is three years. The controlling question in this case is, When did the cause-of this proceeding arise? This question must be determined, on the judgment-roll, which contains neither a statement nor a bill of exceptions. There is no dispute as to the date of the-sheriff’s sale of the real estate described in the petition, which, is August 14, 1886; and there is no dispute as to the fact that the purchaser of said real estate at said sale was entitled to a sheriff’s deed therefor at the expiration of six months after said sale, and that such deed was duly executed on the fifteenth day of February, 1889. The appellant contends that the cause of action arose on August 14, 1886, the date of said sheriff’s sale, and that this proceeding was not commenced until over three years thereafter, to wit, on September 18, 1889, and therefore was barred by the statute of limitations; while the respondent contends that the cause of action did not arise prior to February 15, 1887, the date of said sheriff’s deed, and for that reason does not come within the provisions of the statute of limitations. Section 4496 of the Revised Statutes of 1887 provides, among other things, as follows: “Until the expiration of the time allowed for redemption the court may restrain the commission of waste on the property, by order granted with or without notice, on the application of the purchaser or the judgment creditor. But it shall not be deemed waste for the person in possession of the property at the time of the sale or entitled to possession afterward during the period allowed for the time .of redemption to continue to use it in the same manner in which it was previously used.” This section was adopted by Idaho from the statutes of California, and as early as 1854 the supreme court of that state construed said section, in Duprey v. Moran, 4 Cal. 196. That was a suit in ejectment by the bolder of a sheriff’s certificate of sale to recover possession of real estate before the period for redemption had expired. The court held that the suit was prematurely begun. Guy v. Middleton, 5 Cal. 392, holds that said section of the statute allowing redemption of the property sold [726] at judicial sales contemplates that the possession shall not change to the purchaser until the time for redemption has expired. (See, also, Shirk v. Thomas, 121 Tnd. 147, 16 Am. St. Rep. 383, 22 N E. 976; Bodine v. Moore, 18 N Y. 347; Bowman v. People, 82 Ill. 246, 25 Am. Rep. 316.) It is not contemplated by the statute that the purchaser at a sale of real estate under execution acquires title to the land so purchased, or that he is entitled to possession, until the time for redemption has expired. Under the sheriffs sale the respondent in the action was not entitled to. possession of said real estate until the execution of said sheriffs deed, on the fifteenth day of February, 1887. Section 4498, supra, declares that if the purchaser of property at sheriffs sale fails to recover possession thereof in consequence of some irregularitj1' in the proceedings concerning the sale, or because the property sold was not subject to execution and sale, the original judgment may be revived. The purchaser of real estate at sheriffs sale is not entitled to possession thereof until the time for redemption has expired, and a sheriffs deed executed therefor. And an action, under section 4498 of the Revised Statutes, for the revival of an original judgment on the ground of “some irregularity in the proceedings concerning the sale” does not accrue until the period for redemption has expired, and a sheriffs deed executed for such land. The statute of limitations does not begin to run until such time has expired, and a deed executed. In this case it is not claimed that respondent failed to get possession in consequence of any irregularity in the proceedings concerning the sale, but it is claimed that he failed to get possession because said land was not “subject to execution and sale.” The record shows that one Wallace entered said land under the desert land laws of Congress, made final proof and payment, and received a final receipt or certificate therefor; that thereafter one Samuel E. Rippey, on the eighteenth day of June, 1886, began a contest against said entry, and that such contest was pending until the twenty-fourth day of April, 1889, on which date said contest was decided by the commissioner of the general land office of the United States in favor of said contestant, and thereupon the said entry of Wallace was canceled, and said land became a part of the pub727 lie domain of the United States. Until said decision was made it was not known that said land was not “subject to execution and sale,” for if the decision had sustained Wallace’s entry, instead of canceling it, said land would have been subject to sale on execution, and no cause for the revival of the original judgment would have accrued. As the cause for revival did not ¡accrue until said entry was canceled, the statute of limitations ■did not begin to run until that event occurred. This proceeding was begun on the eighteenth day of September, 1889, less than five months after the cause for a revival of the original judgment had accrued, and was not barred by the statute of limitations. The judgment of the court below is affirmed, with •costs of this appeal in favor of respondent. Huston, C. J., concurs. Morgan, J., having been counsel for respondent in the court below, took no part in the hearing and decision of this ease.