Flint v. Phipps

Oregon Supreme Court

Flint v. Phipps

25 P. 725, 20 Or. 340, 1891 Ore. LEXIS 80

CourtOregon Supreme Court

DecidedJanuary 21, 1891

StatusPublished

Cited by6 cases

This text of 25 P. 725 (Flint v. Phipps) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Flint v. Phipps, 25 P. 725, 20 Or. 340, 1891 Ore. LEXIS 80 (Or. 1891).

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Opinion

Strajian, C. J.

— The first question presented by the record is the sufficiency of the execution upon which the sale was made. It appears that there had been a previous sale of all the lands described in the decree, and that the tracts of land described in this writ had been redeemed by the judgment debtor; but the writ fails to follow the decree in every essential particular except the names of the parties. The power of amendment is conceded, and in most cases should be exercised to support a title acquired at such sale; but it is still a power which must be exercised cautiously and in view of the facts of the particular case. A few months previously this land sold for $5,000; at the sale in question it only brought about $2,300. What caused this discrepancy does not appear. It cannot be claimed that so short a time had produced any effect upon the value of the property.

Courts always exercise full control over their process so that suitors shall not be prejudiced either by the form of the writ or the manner of its execution. (McKee v. Logan, 82 Mo. 524.) The defects in this writ may have been the reason why the property did not sell for as much as at the previous sale, and if so, then the parties were injured to the amount of the difference between the present and former sale. Under this view of the subject, we think the better practice would have been for the court below to have quashed the writ on the defendant’s motion rather than to have amended it This power of amendment is a very salutary one, but it ought always to be exercised in furtherance of justice. In this cause we have .concluded to reverse the decree appealed from and to quash the writ.

The other question raised is not fully presented by this record. It was said at the argument that the defendant Willis had purchased Phipps’ interest in this land before [345]*345the decree of foreclosure and taken a deed therefor j but the fact does not appear in the record. If it did, what effect the fact would have upon the rights of these parties, is not so manifest. (Boyce v. Wright, 2 Abbotts N. Cas. 163; Bowers v. Arnoux, 33 N. Y. Super. Ct. 530; Teabout v. Jaffray, 74 Iowa, 28, 7 Am. St. Rep. 466; Hervey v. Krost, 116 Ind. 268; Clayton v. Ellis, 50 Iowa, 590.) But whatever the correct rule may be, we do not care to enter upon its consideration until all the facts are before us.

Let the decree appealed from be reversed.

Bean, J., having presided at the trial in the court below, did not sit here.

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Strajian, C. J.

— The first question presented by the record is the sufficiency of the execution upon which the sale was made. It appears that there had been a previous sale of all the lands described in the decree, and that the tracts of land described in this writ had been redeemed by the judgment debtor; but the writ fails to follow the decree in every essential particular except the names of the parties. The power of amendment is conceded, and in most cases should be exercised to support a title acquired at such sale; but it is still a power which must be exercised cautiously and in view of the facts of the particular case. A few months previously this land sold for $5,000; at the sale in question it only brought about $2,300. What caused this discrepancy does not appear. It cannot be claimed that so short a time had produced any effect upon the value of the property.

Courts always exercise full control over their process so that suitors shall not be prejudiced either by the form of the writ or the manner of its execution. (McKee v. Logan, 82 Mo. 524.) The defects in this writ may have been the reason why the property did not sell for as much as at the previous sale, and if so, then the parties were injured to the amount of the difference between the present and former sale. Under this view of the subject, we think the better practice would have been for the court below to have quashed the writ on the defendant’s motion rather than to have amended it This power of amendment is a very salutary one, but it ought always to be exercised in furtherance of justice. In this cause we have .concluded to reverse the decree appealed from and to quash the writ.

The other question raised is not fully presented by this record. It was said at the argument that the defendant Willis had purchased Phipps’ interest in this land before [345]*345the decree of foreclosure and taken a deed therefor j but the fact does not appear in the record. If it did, what effect the fact would have upon the rights of these parties, is not so manifest. (Boyce v. Wright, 2 Abbotts N. Cas. 163; Bowers v. Arnoux, 33 N. Y. Super. Ct. 530; Teabout v. Jaffray, 74 Iowa, 28, 7 Am. St. Rep. 466; Hervey v. Krost, 116 Ind. 268; Clayton v. Ellis, 50 Iowa, 590.) But whatever the correct rule may be, we do not care to enter upon its consideration until all the facts are before us.

Let the decree appealed from be reversed.

Bean, J., having presided at the trial in the court below, did not sit here.

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25 P. 725, 20 Or. 340, 1891 Ore. LEXIS 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flint-v-phipps-or-1891.

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