State v. Petersen

784 P.2d 1076, 308 Or. 632

• Court: Oregon Supreme Court
• Decided: December 28, 1989
• Docket: TC 82 1634 C; CA A43977; SC S35864
• Status: Published

Opinions

FADELEY, J.

At issue is the attempted redemption of a residence from a sheriffs sale following foreclosure and judgment for the balance due on a mortgage between Petersen and Oregon’s Department of Veterans’ Affairs.

The case comes to us as a dispute between Newman, the purchaser at the sheriffs sale, and Rita Petersen, the homeowner who gave a mortgage in 1968 to the Oregon Department of Veterans’ Affairs (DVA) and who seeks to redeem from the sale. In 1986, from the proceeds of that sale, DVA was paid the $17,465.98 due to it in full. A subconstitutional ground for decision, which this court normally would employ before reaching constitutional questions, is apparent in the record.¹

When Petersen tendered $22,000 to redeem from Newman less than one year after the sheriffs sale, there were conditions attached to her tender. Those conditions were not permitted or authorized by the statute setting forth and describing her right of redemption. Before making the tender, Petersen obtained an ex parte order of the circuit court directing Newman to show cause why the court should not order the sheriff to issue Petersen a certifícate of redemption under conditions requested by Petersen which would prevent the sheriff from paying the redemption money to Newman. These conditions, not authorized by the statute, would prevent Newman from receiving the redemption money from the sheriff by ordering the sheriff to not pay the money to Newman. One day later, in Newman’s absence, the circuit court entered its order directing that a certificate of redemption be issued to Petersen but that the money not be given to Newman. It is that order from which Newman appealed and that order which the Court of Appeals reversed. The decision of the Court of Appeals is affirmed, but on the grounds stated herein rather than on the constitutional grounds expressed by the Court of Appeals.

The order, dated March 25,1987, provided:

“1. The Sheriff of Washington County, on the tender of $22,000, no later than the close of business 3/25/87, shall issue Rita Helen Petersen a certificate of redemption.

“2. The Sheriff of Washington County shall then tender the funds received by him to Robert Myers at P.O. Box 19388, Portland, OR 97219, Rita Helen Petersen’s Chapter 13 Trustee in bankruptcy for the resolution of all claims between Redemptioner and Creditor-Purchaser at execution sale.”²

Newman assigned as error in the Court of Appeals that the order directed the sheriff to pay the funds to a third person “when the statute requires that fimds paid to the sheriff on redemption be paid to the purchaser.” He cited ORS 23.570(4) to support the claim of error.

The redemption statutes require:

“Redemption shall be made by paying the amount of the purchase money, with interest thereon at the rate of nine percent per annum from the date of sale, together with the amount of any taxes the purchaser may have been required to pay thereon, * * *.” ORS 23.560(2).

The statute requires “paying the amount” due, not paying it on the condition that the sheriff transfer the funds paid to someone other than the sheriffs sale purchaser.

The redemption statutes also require that “the sheriff shall immediately pay the money over to the person from whom the property is redeemed * * * when demanded.” ORS 23.570(4).

The order did not comply with either command of the statute. This court has held that the court has no power to alter the statutory redemption requirements. In Stamate v. Peterson, 250 Or 532, 533-34, 444 P2d 30 (1968), the court stated:

“Redemption, therefore, must be pursued in accordance with the applicable statutes, and not otherwise. See Herrmann v. Churchill, 235 Or 327, 332-333, 385 P2d 190 (1963); Haskin et al v. Greene, 205 Or 140, 151, 286 P2d 128, 286 P2d 137 (1955); Hansen v. Day, 99 Or 387, 390, 195 P 344 (1921); Dray v. Dray, 21 Or 59, 67, 27 P 223 (1891). The statutory nature of the right of redemption gives rise also to the rule that it is not within the province of the court either to increase or lessen the burden imposed upon a party seeking to exercise redemption. Doerhoefer v. Farrell, 29 Or 304, 308, 45 P 797 (1896); followed in Hansen v. Day, supra, and Reichert v. Sooy-Smith, 85 Or 251, 257, 165 P 1174, 165 P 1184 (1917).”

In Doerhoefer, the sheriffs sale purchaser expended sums to remove an old mill from the premises and the court ordered the redemptioner to pay these sums as part of the redemption. This court held that:

“[T]he court was powerless after the sale to require the redemptioner to pay them in addition to the purchase price and interest. 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. * * * the court could not thereafter aid him [the sale purchaser] by a subsequent order prescribing terms upon which the redemption should be made, different from and conflicting with the provisions of the statute.” 29 Or at 308-09.

The rationale in Doerhoefer applies equally here. Payment to someone other than the purchaser conflicts with the statute and disadvantages the purchaser at sale just as the redemptioner in Doerhoefer was disadvantaged by the circuit court’s deviation from the statute there.

In Hansen v. Day, 99 Or 387, 195 P 344 (1921), the redemptioner sought to have a separately-arising “counterclaim” against the sale purchaser offset against that purchaser to reduce the amount needed to redeem. This court refused to permit the offset, stating that redemption “is statutory * * * it must be pursued strictly.” 99 Or at 390. See also First Federal v. Gruber, 290 Or 53, 57, 618 P2d 1265 (1980), stating: “[R]edemption must be pursued only in accordance with the applicable statutes.”

The foregoing is sufficient to form the basis for decision of this case. A debtor who seeks to redeem must follow the statutory terms by “paying the amount of the purchase money” and must do so unconditionally.³ The sheriff must “immediately pay over” that amount to the purchaser. In this case Rita Petersen, and the order of the circuit court, added conditions conflicting with the statute. Neither had authority to do so. The order of the circuit court is reversed. The decision of the Court of Appeals is affirmed, but on the grounds stated herein rather than the constitutional grounds expressed by the Court of Appeals, and the case is remanded to the circuit court.

1 This court has repeatedly enunciated the rule that a statutory ground for deciding a case will be used, where it is available, rather than deciding on a constitutional basis. Otherwise the “cart is put before the horse.” It is basic that determination of Oregon statutory law is antecedent to any claim under the federal constitution * * State v. Spada, 286 Or 305, 309, 594 P2d 815 (1979). State constitutional issues are also deferred where a resolution based on a statute is available. “To the extent that statutory law disposes of a case a court has no occasion to reach a constitutional issue.” See e.g., Nelson v. Lane County, 304 Or 97, 102 n 2, 743 P2d 692 (1987); State ex rel Hathaway v. Hart, 300 Or 231, 235, 708 P2d 1137 (1985); Burt v. Blumenauer, 299 Or 55, 70, 699 P2d 168 (1985); Planned Parenthood Assn. v. Dept. of Human Resources, 297 Or 562, 564, 687 P2d 785 (1984); State v. Thompson, 294 Or 528, 531, 659 P2d 383 (1983).

The Court of Appeals did not discuss or reach Newman’s third claim of error based on the redemption statutes although it was aware of that subconstitutional claim. Director of Veterans’ Affairs v. Petersen, 94 Or App 314, 320 n 8, 766 P2d 386 (1988).

2 The record does not show any service on Newman of the show cause order or of the motion applying for it, both of which were made one day before the order appealed from was entered. Likewise, the record does not show when the bankruptcy proceeding was commenced in relation to the date of Newman’s purchase at the sheriffs sale. That proceeding may have been started after the sale. The record, briefs, and argument make no reference to any order in bankruptcy staying or voiding the sheriffs sale.

3 This appeal raises no accounting or set-off issue under ORS 23.560(3) and (4). The statutes have specific separate provisions for invoking such issues and for dealing with them once invoked. The facts in this case do not supply the statutorily required predicate to even discuss such issues. Accordingly, cases such as Kirk et al v. Rose v. Woods et ux, 218 Or 593, 346 P2d 90 (1959) and Haskin et al v. Greene, 205 Or 140, 286 P2d 128 (1955), simply are not apposite.