Reichert v. Sooy-Smith

Mr. Justice Benson delivered the opinion of the court. 1. We,shall first consider the demurrer to the complaint, the overruling of which is assigned as error. This pleading was evidently framed and the cause was tried upon the theory that the purchaser of real property at an .execution sale stands in the shoes of a mortgagee in possession, and is therefore entitled to recover from a redemptor the moneys necessarily expended by him in preserving the estate from loss and injury. If this theory were correct, we might hold the complaint sufficient to justify an accounting and recovery of such moneys as had been necessarily expended in the preservation of the estate; but, unfortunately, the purchaser at an execution sale does not bear such relation to the property, except in the sense that he may retain possession thereof until the redemptor has paid the sums specified in the statute. The true doctrine is thus expressed in 2 Jones on Mortgages (6 ed.), Section 1051b: “If the purchaser at a foreclosure sale has paid the purchase money and there is a subsequent redemption, his rights are determined by treating him as a mortgagee in possession to the extent of the price paid by him, with interest, and must account for the rents and profits.” The statute relating to redemption reads thus: £ ‘■The judgment debtor, or his .successor in interest, may, at any time prior to confirmation of sale, and also within one year after confirmation of sale, redeem the property on paying the amount of the purchase money, with interest thereon at the rate of ten per cent per annum from the date of sale, together with the amount of any taxes the purchaser may have been required to pay thereon”: Section 248, L. O. L. [257] The case of Higgs v. McDuffie, 81 Or. 256 (157 Pac. 794, 158 Pac. 953), makes it clear that such redemption is not from the mortgage, bnt from the sale. If there were no statute, there could be no redemption. In Doerhoefer v. Farrell, 29 Or. 304 (45 Pac. 797), Mr. Chief Justice Bean says: “The right to redeem from an execution sale is a statutory right, and the court can neither increase nor lessen the burden of the redemptioner.” "We have been unable to find any authority in conflict with this doctrine. Ve conclude, therefore, that the demurrer should have been sustained. If this works an injustice, and we think it does, the remedy lies with the legislature and not with the courts. 2. Considering defendant’s cross-appeal we observe that the answer pleads a counterclaim of $1,000 as the reasonable value of the use and occupation of the premises during the time they were in the possession of the plaintiff. Under this plea, defendant offered evidence which was excluded by the trial court which ruling was assigned as error. It is stipulated that $166.89 was received by the plaintiff from the sale of fruit, but it does not appear from the stipulation that this is all that was received or that it is all that should have been received for the products of the orchard. Under this state of the record it was error to exclude the evidence offered. 2 Jones on Mortgages (6 ed.), Section 1122, contains the following statement of the correct practice: “If a mortgagee himself occupies the premises, especially if they consist of a farm under cultivation, upon which labor and money must be bestowed to produce annual crops, he will be charged with such sums as will be a fair rent of the premises, without [258] regard to what he may realize as profits from the use of'it.” 3. Of course the plaintiff should be allowed to offset against such charge such sums as he may have expended in the care and cultivation of the property and moneys expended in protecting it from deterioration, together with the reasonable value of his own services in such work. The judgment will be reversed and the cause remanded for further proceedings not inconsistent herewith. Reversed and Remanded, Mr. Chiee Justice McBride, Mr. Justice Burnett and Mr. Justice Harris concur. Denied. July 24, 1917.