Ulrich v. Lincoln Realty Co.

175 P.2d 149, 168 P.2d 582, 180 Or. 380

• Court: Oregon Supreme Court
• Decided: April 9, 1946
• Status: Published

Opinions

LUSK, J.

The question for decision may be stated as follows: Where one not liable on the mortgage indebtedness acquires the legal title to mortgaged premises during the pendency of a suit to foreclose and thereafter redeems from the foreclosure sale, may the holder of a judgment for an unsatisfied balance of the mortgage indebtedness cause the property so redeemed to be sold again on execution for the satisfaction of such balance?

The answer depends upon the proper interpretation and application of certain provisions of our statute relating to mortgage foreclosures, redemption and execution.

Prior to 1917, when important legislative amendments affecting this case were adopted, a person redeeming under the circumstances stated took the property free from the burden of the judgment. This was decided in Willis v. Miller, 23 Or. 352, 31 P. 827. The statute in effect at that time (Hill’s Code, §303) provided that the judgment debtor or his successor in interest might redeem, and the grantee of the legal title before foreclosure was held to be a successor in interest within the meaning of that provision. While the conveyance in that case was made before the suit to foreclose was commenced, the ground of the decision that the property could not be sold again to satisfy the balance due on the judgment left no room, as will later appear, for a distinction between that kind of a case and a case in which redemption is made by a grantee of the legal title pending foreclosure proceedings. Previous to Willis v. Miller it had been held in Settlemire v. Newsome, 10 Or. 446, that, where lands were sold on execution for an amount less than the mortgage indebtedness and redeemed by the grantee of the judgment debtor, the lands might be sold again for the balance due on the judgment. The identical question again came before the court in Flanders v. Aumack, 32 Or. 19, 51 P. 447, 67 Am. St. Rep. 504, and the decision in Settlemire v. Newsome was approved and followed. It was said in an opinion by Mr. Justice Wolverton that “the authorities are practically uniform that a redemption by the judgment debtor of his lands sold under execution will reinstate the lien of the judgment for any balance remaining unpaid, and subject the lands to a resale to satisfy such balance”, and that the successor of the judgment debtor “is not a bona fide purchaser for value, but simply occupies the shoes of his predecessor, with no new enlarged rights or privileges, and can neither exercise nor enjoy any that the judgment debtor did not possess or could not have enjoyed.” In answer to the contention that Settlemire v. Newsome had been overruled by Willis v. Miller, the court said that the deficiency judgment was against the mortgagor alone, and therefore never became a lien against the land in the hands of his grantee who had acquired the legal title prior to foreclosure. It was said:

“A mortgage is a specific lien, which attaches by virtue of the contract of the parties concerned; but the lien of a judgment is general, and attaches by operation of law, as a sequence of its rendition. Foreclosure is a remedy by which the property covered by the mortgage may be subjected to sale for the payment of the demand for which the mortgage stands as security, and, when the decree is had and the property is sold to satisfy it, the mortgagee has obtained all he contracted for; but, if there is also a personal decree against the mortgage debtor, this becomes, from the date of the docketing, a general lien upon his real property, as in case of a judgment; and, if a deficiency remains after the application of the proceeds of the sale of the lands covered by the mortgage, the decree may be enforced by execution, as in ordinary cases: Hill’s Adm. Laws, § 417, subd. 2. The re-sale does not take place under the order for the sale of the specific property covered by the mortgage lien, for that has been exhausted, but under the personal decree which remains as a deficiency decree against the mortgage debtor after the application of the proceeds arising under the order of sale; and a redemption will not reinstate the specific mortgage lien, while it will the general lien acquired by the personal decree. This distinction is clear, and is bottomed both upon principle and authority. The redemption is from the sale, and not from the mortgage; and, if the lien of the personal decree has never attached, by reason of the mortgagor not having the fee of the property at the time it was rendered, there never existed any lien to be reinstated against his successor in interest, who purchased prior to the decree.” (32 Or. 29)

See, also, Williams v. Wilson, 42 Or. 299, 304, 70 P. 1031, 95 Am. St. Rep. 745.

Such seems to have been the state of the law on this subject when the case of Higgs v. McDuffie, 81 Or. 256, 157 P. 794, 158 P. 953, came before the court. The principal question in that case was whether Higgs, a mortgagor who had conveyed the mortgaged premises before foreclosure and against whom a judgment was rendered for the mortgage indebtedness, had the right to redeem from the foreclosure sale. The statute governing redemption then in effect (§ 245, L. O. L.) provided :

“Property sold subject to redemption, as provided in the last section, or any part thereof separately sold, may be redeemed by the following persons or their successors in interest:—

“1. The judgment debtor or his successor in interest, in the whole or any part of the property separately sold;

“2. A creditor having a lien by judgment, decree, or mortgage on any portion of the property, or any portion of any part thereof, separately sold, subsequent in time to that on which the property was sold.

“The persons mentioned in subdivision 2 of this section, after having redeemed the property, are to be termed redemptioners.”

It was held in an opinion by Mr. Justice -Burnett that Higgs, as a judgment debtor, came within the first subdivision of the statute above quoted. It was contended, however, that he had lost the right to redeem through having conveyed the mortgaged premises prior to foreclosure, and that this right was now in his grantee as the successor in interest to the judgment debtor. But the court held that no judgment debtor came into existence until after the decree, and therefore there could be no successor in interest to a judgment debtor prior to the decree. It appeared that after the sale the owner of the legal title quit-claimed to one Mahoney. It was said that Mahoney took nothing by the deed because, in the view of the court, all that Higgs conveyed by his deed was the “equity of redemption”, meaning by that phrase, not the right of redemption given by the statute, but the ‘ ‘ contract right of redemption”, which has come down to us from the common law, and constitutes in modern jurisprudence “the fee-simple estate of the mortgagor encumbered by the lien of the mortgage, there being no title conveyed to the mortgagee by that instrument”. This right of the grantee, who took subject to the mortgage, was cut off by the decree by reason of the statute which then provided:

“M decree of foreclosure shall have the effect to bar the equity of redemption, and property sold on execution issued upon a decree may be redeemed in like manner and with like effect as property sold on an execution issued on a judgment, and not otherwise.” §427, L. O. L. (Italics added)

The court said:

“His contract right to redeem, or, in other words, his equity of redemption, named in Section 427, L. 0. L., all he took as successor of Higgs in Ms character as owner or mortgagor, was gone beyond recall. After the decree it conld not be made the basis of any further operation affecting the title. When Higgs conveyed, he was not a judgment debtor, and could not transfer any right of such a character, for there was nothing of the kind in existence to sell. When, and not until, by the decree it had been determined that Higgs was a judgment debtor, a statutory privilege appertaining to one thus declared to be personally liable for the debt came into being for the first time. It related exclusively to the particular lands in question, and only then or afterward could anyone become the successor in interest of the judgment debtor within the true meaning of Section 245, L. O. L., read in connection with Section 427, L. O. L., both being parts of the same act.” (81 Or. 268)

Mr. Justice Henry J. Bean wrote a specially concurring opinion in which he dissented from the view of the majority that Higgs was not a judgment debtor at the time that he conveyed and that Ms grantee had no right to redeem, and called attention to Willis v. Miller and Jacobson v. Lassas, 49 Or. 470, 473, 90 P. 904, and to the opinion of Judge Deady in Lauriat v. Stratton, 11 Fed. 107, in which a contrary view was expressed. He also referred to Kaston v. Storey, 47 Or. 150, 80 P. 217, 114 Am. St. Rep. 912, in which Mr. Justice Robert S. Bean said:

“The legal title remains in the mortgagor or his successor in interest until a sale under a foreclosure decree has ripened into a title by the execution and delivery to the purchaser of a sheriff’s deed in due course of law”,

and to a similar pronouncement in Dray v. Dray, 21 Or. 59, 27 P. 223. He concurred, however, in the conclusion that Higgs, the judgment debtor, was entitled to redeem.

Higgs v. McDuffie was decided in 1916, and at the next succeeding session of the legislature, in 1917, §§427 and 245, L. O. L., the construction of which governed the decision in that case, were radically amended. Section 427, L. O. L., was amended by § 3, Ch. 352, General Laws of Oregon 1917, now § 9-507, O. C. L. A., and reads as follows:

“A decree of foreclosure shall order the mortgaged property sold, and property sold on execution issued upon a decree may be redeemed in like manner and with like effect as property sold on an execution issued on a judgment, and not otherwise. A sheriff’s deed for property sold on execution issued upon a decree shall have the same force and effect as a sheriff’s deed issued for property sold on an execution issued on a judgment. ’ ’ (Italics added)

Section 245, L. O. L., was amended by § 1, Ch. 352, General Laws of Oregon 1917, now § 6-1602, O. C. L. A., and reads as follows:

“Property sold subject to redemption, as provided in the last section, or any part thereof separately sold, may be redeemed by the following persons:

“1. The mortgagor or judgment debtor whose right and title were sold, or his heir, devisee, or grantee, who has acquired, by inheritance, devise, deed, sale, or by virtue of any execution, or by any other means, the legal title to the whole or any part of the property separately sold; provided, however, that in the event redemption is made by anyone acquiring the legal title after attachment, or after the institution of suit to foreclose a mortgage or lien, or after a judgment becomes a lien on the property, such person shall acquire no greater or better right thereby to the property so redeemed than the holder of the legal title at the time of such attachment or judgment or the institution of such suit.”

(Eemainder of statute unchanged)

The 1917 legislation without doubt was the consequence of the decision in Higgs v. McDuffie. Its central purpose, so far as it concerned mortgages, was to change the rule of that case that a grantee of the legal title before foreclosure was not entitled to redeem, and to reestablish, in large part, the law on that subject as it had been theretofore announced by this court. To this end, not only was express provision for such redemption made, but one ground of the decision in Higgs v. McDuffie was removed by eliminating the provision of the old statute that “a decree of foreclosure shall have the effect to bar the equity of redemption”, and substituting therefor the language which now appears in § 9-507, O. C. L. A.: “A decree of foreclosure shall order'the mortgaged property sold”. The amendment, however, did not stop at that point. As we have seen, it had been decided that the grantee redeeming (where he was not personally liable on the mortgage debt) took the property free from the lien of a deficiency judgment. Willis v. Miller, supra. With respect to that question the 1917 act created two classes —those who acquired the legal title before the institution of a suit to foreclose and those who acquired such title afterwards; and, as to the latter, provided that their right to the property so redeemed should be no greater or better than the right of “the holder of the legal title at the time of the institution of such suit.” Since it is a redemption statute we are construing, it is obvious that this language refers to the right of redemption in the one who held the legal title at the time mentioned. In this case that person was the Lincoln Realty Company, and the exercise of the right by it would have carried with it the liability to have the property resold to satisfy the balance due on the judgment. Flanders v. Aumack, supra; Settlemire v. New- some, supra. If the respondent were permitted to redeem free from that liability, he would certainly be accorded a better and greater right than the holder of the legal title at the time of the institution of the foreclosure suit, and the legislative mandate would be violated.

This is the plain meaning of the statute, and no other reasonable interpretation has been suggested in argument.

Counsel for the respondent Roehr, however, contend that so to construe the statute would bring it into conflict with the judgment lien statute," § 6-801, O. C. L. A., which provides in part:

“From the date of docketing a judgment, as in this chapter provided, or the transcript thereof, such judgment shall be a lien upon all the real property of the defendant within the county or counties where the same is docketed, or which he may afterwards acquire therein, during the time an execution may issue thereon. ’ ’

It is argued that the interpretation of the 1917 amendment which we have adopted would create an exception amounting to an amendment, or partial repeal by implication, of the foregoing provision, and that a legislative intent of that sort will not be lightly implied, nor implied at all if any other reasonable construction can be given the 1917 act. Further, counsel call attention to the fact that the judgment lien statute was reenacted in 1929 (General Laws of Oregon 1929, Ch. 365), and thus it cannot be contended that the amendment to the redemption statute as a later enactment should prevail.

It should be first observed that this entire contention harks back to Willis v. Miller and the reasoning upon which the court proceeded in that case, for it was there said:

* ‘ The defendants received the benefit of the sale, or the proceeds of it, in payment of their debt, and it operated as a sale to them, and consequently to extinguish the mortgage lien upon the land; and as the personal judgment for the deficiency is against the judgment debtor Phipps, it could not, when docketed, have created any lien against the property of the plaintiff, nor could any execution issued upon such judgment affect it.” (23 Or. 361)

In other words, the proposition which we are asked to approve is that, notwithstanding language in the proviso of the 1917 amendment which was plainly intended to limit the right of redemption conferred upon a grantee who acquired the legal title pending foreclosure proceedings, the law remains unchanged since the decision in Willis v. Miller. Only the most potent reasons would justify us in yielding to such a contention. It is the court’s duty to ascertain the legislative intent, and, if possible, to give it effect. The right of redemption is purely statutory, “and cannot be enlarged, abridged or defeated by the court in the foreclosure decree or otherwise.” 3 Wiltsie on Mortgage Foreclosure, (5th ed.) 1665, § 1062. The right can be exercised, as the same author says, “only in the manner, upon the conditions and by the persons described in the statute.” Id. 1671, §1068. “If the statute which authorizes the sale and gives the redemption right likewise declares the effect of the sale and allowance of the right, that effect, and it alone, may be allowed.” 23 C. J., Executions, 727, § 753.

It is unnecessary, as we view the matter, to determine that the legislature intended to create an exception in the judgment lien statute or to amend it by im plication, for, in our opinion, the manifest purpose of the legislature has been otherwise accomplished.

Although the opinion in Willis v. Miller was written by Chief Justice Lord, he did not agree with the decision that the redeeming grantee took the property free of the lien of the deficiency judgment. After summarizing the view of the majority in the language last above quoted from that case, he said:

‘ ‘ On my own behalf, I am obliged to say that I am unable to acquiesce in this doctrine. I do not think that the decree of foreclosure and sale merges or extinguishes the lien of the mortgage. The mortgage lien is a specific one, and the judgment obtained is a general one. The suit of foreclosure is a remedy for the enforcement of the lien, and certainly is not intended to have the effect to impair or abridge the mortgage lien. That effect can only be accomplished by payment of the mortgage debt, or a release. The lien was created by the mortgage, and the decree neither added to nor took anything from it, and the effect of the sale under it was vacated or terminated by the redemption, and thereafter the mortgage and judgment of foreclosure stood as though no sale had ever been made. ” (23 Or. 361)

The view thus expressed has been said to be supported by the weight of authority (37 Am. Jur., Mortgages, 79, §596), although it is not the judicial doctrine of this state. But the legislature undoubtedly was invested with the power and authority to provide, at least as to future mortgages, that the governing law should be in accordance with Chief Justice Lord’s views, and this, we think, it has done to the limited extent stated in the proviso in § 6-1602, O. C. L. A. The effect of the proviso, as it relates to redemption by one in the position of the respondent Roehr, is to preserve the lien of the mortgage against the property after redemption in the hands of such a person. In that way the expressed intention of the legislature that one so redeeming should have no greater or better right than the owner of the land at the time of the institution of the foreclosure suit is given effect. It follows that the property may be resold for the balance due on the judgment and that the execution was erroneously recalled.

Counsel for respondent argue that the statute thus construed is inequitable. That is a consideration which, if founded on fact, might weigh in the balance were a choice of equally reasonable constructions presented. But there is no such choice. The only interpretation suggested by the respondent is, as stated in his brief, the following:

“The redemption statutes provided that where redemption was made by the judgment debtor the effect of the sale was terminated and he was restored to his estate (Sec. 6-1606), and when final redemption was made by a redemptioner he was entitled to a sheriff’s deed (See. 6-1606). But there was nothing in the statute to show the effect of a redemption by a successor in interest of the judgment debtor. The proviso would have the effect of making it clear that when redemption was made by such successor in interest he was not like the redemptioner entitled to a sheriff’s deed cutting off subsequent liens and encumbrances, but acquired only the title which his grantor had.”

In our opinion the suggested construction is wholly inadmissible. The “redemptioner” referred to in the foregoing excerpt from respondent’s brief is defined in § 6-1602, Subd. 2, O. C. L. A., as “a creditor having a lien by judgment, decree or mortgage on any portion of the property, or any portion of any part thereof, separately sold, subsequent in time to that on which the property was sold”, and who has redeemed the property. That provision has been in the statute from the beginning, and it is only such a creditor or a purchaser at the sheriff’s sale who has ever been entitled to “a sheriff’s deed cutting off subsequent liens and encumbrances.” The distinction between the effect of redemption by a redemptioner and by those enumerated in the first subdivision of § 6-1602 was thus stated by Mr. Justice Wolverton in Flanders v. Aumack, supra, 32 Or. at p. 26:

‘ ‘ The statute has provided for redemption by but two classes of persons, — the judgment debtor and his successor in interest, and creditors having liens, etc. A redemption by the latter class is with a purpose of securing a sheriff’s deed in pursuance of the sale, and a redemption by the former is inimical to the sale, and puts an end to it; and the effect cannot be different whether the judgment debtor or his successor in interest redeem.”

That language, it is true, was used in a case where the judgment debtor’s interest in the property was conveyed after the judgment was rendered and docketed. But Willis v. Miller had already established that one who acquired the legal title to mortgaged premises from the mortgagor before the decree was the successor in interest of the judgment debtor, and sustained the same relation to the decree as the successor in interest of a judgment debtor in an action at law, and was therefore entitled to redeem. And see Lauriat v. Stratton, supra. That doctrine was overturned by Higgs v. McDuffie, but it was restored by the first part <>£ the 1917 amendment in the provision granting the right of redemption to the grantee of the mortgagor. When the amendment was adopted the second subdivision of the act which creates the category of “re demptioners” was preserved intact. What has since become § 6-1606, O. C. L. A., was, prior to the 1917 amendment, § 249, L. O. L., and that section was itself amended by Ch. 7, Oregon Laws 1917 (the change made having no materiality for present purposes) so as to' read:

“If redemption be not made as prescribed in this Act, or when redemption is made and a period of sixty days shall have elapsed without any other redemption, the purchaser or the redemptioner, as the case may be, shall be entitled to a conveyance from the sheriff. If the judgment debtor redeem at any time before the time for redemption expires, the effect of the sale shall terminate and he shall be restored to his estate.”

Thus, it is as clear as language can make it that no one but a “redemptioner” or the purchaser at the salé can, or ever could, acquire a deed from the sheriff, and that the grantee of the mortgagor, as such, is neither. There is no evidence in our judicial or legislative history pertaining to this subject to suggest, even remotely, the least doubt on this score, and it is an extreme and unwarranted view that the legislature was concerned with that question when it undertook to reverse the rule of Higgs v. McDuffie. What obviously concerned it were the questions arising in the decisions discussed and, to some extent, overruled in that case, including the question here presented on which the court divided in Willis v. Miller.

It is also argued in respondent’s brief that to adopt the appellant’s contention would overturn a rule of property long acted upon by property owners and title insurance companies under the advice of lawyers. But the only rule of property involved is the 1917 amendment of the redemption statute, which has never before been construed by this court. Where a court has judicially determined the law on a question of this sort it may be presumed that people will govern themselves accordingly. But there is no presumption that they will act upon the construction of a statute which the courts ultimately determine to be erroneous. We have no evidence to support the assertion of the respondent. And we think that the language of the proviso in the 1917 amendment is such as to suggest strongly to the legal mind that until its meaning was judicially settled, there would always be doubt, at least, as to the extent of the redemption right of a person whose position was that of the respondent.

It follows that the judgment of the court below should be, and it is, reversed.