Ziller v. Brower

JENNINGS, District Judge! The property having been duly redeemed by Koel, Ziller, the purchaser at marshal’s sale and plaintiff herein, would be no longer “entitled to the possession,” and his action of ejectment must necessarily fail; but he contends that under section 1139, Compiled Daws of Alaska 1913, he is entitled to continue waging the suit for the rents and profits. That section reads as follows. “If the right of the plaintiff to the possession of the property expire after the commencement of the action, and before the trial, the verdict shall be given according to the fact, and judgment shall be given only for the damages.” Conceding that that section is applicable, the question which confronts the court is this: When the execution creditor becomes the purchaser at an execution sale, bidding the full amount of his judgment and receiving from the marshal a certificate of sale, and when the property sold is after-wards duly redeemed by payment by a redemptioner of the full amount due of the judgment and the certificate, which said amount is accepted by the purchaser, may the said purchaser have his action for rents and profits for the period elapsing between his certificate of sale and the redemption? Plaintiff contends that he is so entitled, basing the contention on section 1126 of the Compiled Daws of Alaska of 1913, reading as follows: “The purchaser from the day of sale until a resale or a redemption. and a redemptioner from the day of his redemption until an [137] otlier redemption, shall be entitled to the possession of the property purchased or redeemed, unless the same be in the possession of a tenant holding under an unexpired lease, and in such, ease shall be entitled to receive from such tenant the rents or the value of the use and occupation thereof during the same period.” In only a few of the states 'is there any such statute; in some of that few there are cases which seem to hold with the plaintiff, although I have not seen any case involving all the terms of the above-stated query. However that may be, I think that our statute has been virtually construed by the Oregon courts as against the position taken by plaintiff. Says Judge Bellinger, in Balfour v. Rogers (C. C.) 64 Fed. 926, 927: “The right to receive rents and profits under this section does not imply that what is thus received need not be accounted for in case of redemption. In Cartwright v. Savage, 5 Or. 397, it is held that, when a judgment debtor redeems, he may recover the value of a crop growing upon the land at the time of the sale and harvested by the purchaser while in possession. It follows that the'product of the property must in all cases be accounted for to the redemptioner. It is not the policy of the statute to give the creditor more than his debt, with interest and proper charges.” By the amount paid on the redemption plaintiff received his debt in full, and if in the mean while he had collected these rents, then he would, on redemption being made, have had to account for them, and on such accounting it is manifest he would be the one indebted, and not Brower or Koel. It is not clear, then, how he has been damaged by not having been paid the amount of the rents.. The action will be dismissed, but, insomuch as at the time • it was brought plaintiff might have been entitled, the dismissal will be without costs to either side. Footnotes [1] (g^jSee same topic & KEY-NUMBER In all Key-Numbered Digests & Indexes' [2] <@zs>See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes