Leinenweber v. Brown

34 P. 475, 24 Or. 548, 1893 Ore. LEXIS 160

• Court: Oregon Supreme Court
• Decided: October 23, 1893
• Status: Published

Opinions

Me. Justice Bean

delivered the opinion of the court:

1. It is manifest the complaint does not state facts sufficient to constitute a cause of suit, and the demurrer was properly sustained. It is sought by this suit to set aside an execution sale of real property, on the ground of inadequate price and irregularities in the proceedings subsequent to the decree upon which the sale was made. The allegation that the defendant Brown had knowledge of and participated in the proceedings with the purpose of obtaining the land at an inadequate and unfair price, is too vague and uncertain to charge fraud; and, besides, the complaint does not show that the plaintiff Leinenweber could not have prevented the sale by a motion in the court below to quash the execution, or by objections to the confirmation of sale, and having failed to press her objections at the proper time, or to show that she was prevented from so doing by fraud or deception, she is not entitled to relief by an independent suit: Black, Judgments, § 370. The plaintiff had a right to and could have appeared in the original suit and moved to quash the execution, or filed objections to the confirmation of the sale for the reasons stated and alleged in the complaint, all which, so far as appears, she failed and neglected to do; nor does she offer any excuse for such failure except her absence from the state, and that certainly does not. present sufficient ground for relief in this suit.

2. The defects, if any, in the execution under which the sale was made, were but mere irregularities which did not render it void, and should have been taken advantage of by a motion to quash, and the law has long been settled in this state that an order or decree of confirmation of an execution sale must be regarded as a conclusive determination of all questions concerning the irregularity of the proceedings subsequent to the execution: Matthews v. Eddy, 4 Or. 225; Dolph v. Barney, 5 Or. 191; Wright v. Young, 6 Or. 87; McRea v. Daviner, 8 Or. 63. Affirmed.