Elling v. Harrington , 17 Mont. 322 ( 1895 )

Pemberton, C. J.

This is an action based upon section 347 of the Code of Civil Procedure (Comp. St. 1887). That part of the section involyed reads as follows: “ If the purchaser of real property sold on execution, or his successor in interest, be evicted therefrom in consequence of irregularities in the proceedings concerning the sale, or of the reversal or discharge of the judgment, he may recover the price paid, with interest, from the judgment creditor.” It is conceded that the judgment and execution under which plaintiff purchased the lots described in the complaint were void; that the defendant was the judgment and execution creditor; and that the judgment and execution were declared void in proceedings instituted by him, under which proceedings plaintiff’s title to the lots was defeated. It is not denied that, under such proceedings, defendant obtained the full amount of the claim upon which he recovered the void judgment against the probate judge after having received the 1162.55 of plaintiff as the proceeds of the void sale.

The defendant contends that, as no actual eviction by legal proceedings is shown or alleged, the plaintiff cannot recover in this action. We think it is not necessary, in all cases, to show such an eviction. In many cases it is sufficient if a paramount title be shown, as was evidently shown in this case. (Schriver v. Smith, 100 N. Y. 471, 3 N. E. 675; McGary v. Hastings, 39 Cal. 360; 7 Am. & Eng. Enc. Law, pp. 36-40, and authorities cited).

The defendant, after causing the lots to be advertised and sold at execution sale, under a confessedly void judgment obtained by himself, afterwards instituted and successfully prosecuted proceedings in court by which it was determined and decreed that the judgment and execution under which plaintiff purchased were void, thereby effectually defeating plaintiff’s title to the lots by showing a paramount title in the trustee in the townsite. This comes very nearly showing, not only that plaintiff was evicted, but that he was evicted by the defendant. But it is contended by plaintiff that, irrespective of the statute referred to above, he is entitled to recover the money he paid defendant, for the reason that the execution under which he bought the lots, and the judgment under which the execution was issued, were absolutely void.

In Schwinger v Hickok, 53 N. Y. 280, it is held that “a purchaser upon a sale under a void execution, who has paid the purchase money in good faith, without actual knowledge of the invalidity of the process, to the party who procured the sale, can maintain an action against such party to recover back the money;” and also that knowledge of such invalidity of the process £ £ will not be imputed to the purchaser at such salé, in order to make out that the payment was voluntary. ’ ’ Henderson v. Overton, 2 Yerg. 394, a well-considered case, holds that £ £ the purchaser of land at execution sale, where the judgment on which the execution issued is void, and where the sale is therefore void, may recover from the judgment creditor the purchase money paid at the sale. ’ ’ (Chapman v. City of Brooklyn, 40 N. Y. 372; Hunt v. Loucks, 38 Cal. 372.)

We think there was such an eviction in this case, as shown by the pleadings, as to entitle the plaintiff to recover the purchase money under the statute referred to. As the judgment and execution under which the plaintiff purchased the lots were confessedly void, and especially as they were judicially decreed to be void under proceedings prosecuted by the defendant, the creditor in such judgment and execution, and under which proceedings the plaintiff’s title was defeated, we think, under the authorities cited above, plaintiff is entitled to recover the purchase money paid to defendant. We think it would be inequitable to hold otherwise, under the circumstances and facts of the case.

The defendant contends that the court erroneously ignored the contract set up in the answer, by which it is alleged that the title to the lots was secured to the plaintiff by the defendant and one W. W. Morris. By reference to that part of the answer, shown in the statement, it will be seen that it is not alleged that the consideration of the contract was the price paid by the plaintiff for the lots at the execution sale. It is not shown what the consideration of the contract was, or that there was any consideration therefor.

Defendant pleads the statute of limitation. We think plaintiff’ s cause of action accrued, as alleged in the complaint, on the 19th day of October, 1889, when he was practically evicted by the proceedings in court of the defendant, which resulted in decreeing that the judgment and execution under which he purchased the lots were void. The suit was brought within two years thereafter, and we do not think it can be held that the action was barred by the statute of limitation. As the answer, in our opinion, did not contain any defense to the action, we see no error in the action of the court in ordering judgment entered on the pleadings. The judgment is therefore affirmed.

Affirmed.

DeWitt and Hunt, JJ., concur.