Knipe v. Austin , 13 Wash. 189 ( 1895 )

The opinion of the court was delivered by

Dunbar, J.

This case involves the construction of § 519 of the Code of Procedure, and the question involved is whether, upon redemption of real estate sold under execution, the amount of rents and profits received by the purchaser shall be credited to the redemptioner, or whether such rents and profits belong absolutely to the purchaser. It is conceded that this question was. squarely decided in opposition to the contention .of; the' respondents by this court in the case of Hardy v. Herriott, 11 Wash. 460 (39 Pac. 958); but we are asked by the respondents notwithstanding this decision to again construe this statute and treat it as an open question; and, in view of the importance of the question involved, we have concluded not to treat the case of Hardy v. Herriott, supra, as stare decisis, but to enter upon an original investigation.

But after a renewed examination of the authorities and of the statute, enlightened by an earnest and intelligent discussion, we are unable to find any escape from the conclusions reached in Hardy v. Herriott. It is conceded by the respondents that the statute governing this case might with propriety be construed as it has before been construed by this court, but it is urged that inasmuch as the construction which has been placed upon it' is a construction which permits hardships to be imposed upon the redemptioner, the statute should, if possible, be construed so as not to do an injustice to a debtor or give an advantage to a creditor. In other words, that the construction should be that which natural justice requires.

Without in any way controverting these rules of construction, we do not think they can be applied to a statute where the language is as plain and explicit as the language of our statute. The language of the statute is that:

“ The purchaser from the day of sale until a re-sale or redemption, and the redemptioner from the day of his redemption until another redemption, shall he entitled to the possession of the property purchased or redeemed, unless the same be in the possession of a tenant holding under an unexpired lease, and in such case shall be entitled to receive from such tenant the rents or the value of the use and occupation thereof during the same period.”

It is contended by the respondents that, while under this statute it cannot be denied that the purchaser is entitled to the possession, or in case of a tenant, entitled to the rents or the value of the use and occupation thereof, yet that the idea of the legislature must have been that the purchaser was to receive this profit, and upon the redemption that it was his duty to remit it to the redemptioner; that the law gave him the right of possession for the purpose of securing his investment, and the interest which the law allowed, and for no other purpose; and that it is manifestly unjust that he should he entitled to twelve per cent, interest on his investment, and also to rents and the profits accruing from the land purchased.

We do not think that the legislature indulged in any fine distinctions between the word “ receive ” and the word “ have,” as is contended by the respondents; that if they had said “ he shall be entitled to have,” they would not have said any more than was said by the expression “ shall be entitled to receive.” It is a rule of construction, which must not be lost sight of by courts, that, where the legislature makes use of phrases of a well-known and definite sense, courts in construing such phrases must accord to them the same sense. We cannot understand how the benefit flowing from rents and profits could have been any more definitely conferred upon the purchaser than was conferred upon him by the legislature by the use of the expression “ shall be entitled to receive from such tenant the rents or the value of the use and occupation thereof.”

The statute provides that the purchaser shall be entitled to the possession of the property purchased or redeemed. This evidently was a valuable benefit conferred upon the purchaser, and the measure of that value is indicated in the subsequent provision that in case this possession cannot be obtained by reason of the possession being in a tenant holding under an unexpired lease, the purchaser shall he entitled to receive from such tenant the rents or the value of the use and occupation thereof. The legislature was talking about something valuable. That something was the right to the possession of the property, and the value of that right in the mind of the legislature was presumably the value of the rent of the land purchased. It may be that cases of hardship will arise under this law; but courts have nothing to do with the policy or impolicy, the justice or injustice of legislative enactments. The right to redeem at all is a right granted by the statute. Without a statutory enactment the right would he cut off absolutely. It is a right that is purely ex gratia, and the legislature in conferring this right could confer it burdened with any conditions which it saw fit to impose.

As a question of abstract right there is no reason why the purchaser should be entitled, upon the redemption, to anything more than the return o’f his money with the legal rate of interest, but the legislature has seen fit to give him twelve per cent., or one-third more than the legal rate. It may have been thought by the legislature that men who had money would not care to invest it in purchases of this kind, where there was no assurance that their money was invested for any particular length of time, and that to stimulate buyers they allowed them twelve per cent, interest on their investment instead of eight. And it might have occurred to the legislative mind that a further stimulus was necessary, and, to supply that, the further value of rents and profits was bestowed upon the purchaser. The legislative mind may or may not have reasoned correctly on this proposition, but when once we concede to it the right to enter upon an investigation of this kind, the results of that investigation expressed in an enactment cannot be called in question by the courts.

Now, there has been a good deal said as to the announcement in Hardy v. Herriott of the doctrine that the title of the judgment debtor became extinguished by the sale of the land, and that all that was left to him was the equitable right to redeem, and that the purchaser at such sale acquired the full legal title, carrying with it possession and the right to rents and profits. Many cases sustain the doctrine therein announced, but the decision of that technical question was not necessary to the decision of the real question involved in Hardy v. Herriott, and it is not necessary to the decision in this case. It is a substantial benefit that is granted by the legislature, viz., the right to the possession or the right to the value of the possession under certain circumstances, and the legislature has as much power to bestow that benefit upon the purchaser with the legal title remaining in the redemptioner as it would if the legal title passed from the redemptioner to the purchaser at the time of the sale. The discussion of the title proposition is the discussion of a theory, and does not affect the practical fact that the legislature, regardless of the question of title, has conferred this right. So that we do not think it at all necessary to discuss that question here.

It is also insisted by the respondents, in that connection, that the statute further finds that the court may restrain the commission of waste on the property on the part of the purchaser, and that such power could not be entertained by a court, if the actual title had passed to a purchaser and he was the actual owner of the premises. We hardty think this-proposition is worthy of extended notice. If the right of redemption which the legislature saw fit to grant to the judgment debtor is to be made effective at all it could only he made effective by maintaining intact the premises sold, for if waste or- destruction were permitted it is manifest that no redemption could be effected.

The assertion on the part of the respondents that Hardy v. Herriott stands alone and that the adjudicated cases have all decided the opposite doctrine, is an assertion which cannot be sustained. A re-examination of the cases cited in Hardy v. Herriott convinces us that they sustain the doctrine there announced. The case of Harris v. Reynolds, 13 Cal. 515 (73 Am. Dec. 600), under a statute substantially like ours, is exactly in point and announces the doctrine as broadly as it was announced by this court in the case above referred to; and after the decisions in the California cases, construing the statute as we have construed it, the legislature of that state amended the statute by adding, “ but when any rents or profits have been received by the judgment creditor or purchaser, or his or their assigns, from the property thus sold, preceding such redemption, the amounts of such rents and profits shall be a credit upon the redemption money to be paid.” Our statute contains no such provisions, and after providing in special terms that the purchaser shall receive the value of the rents and profits, unless this value is by some other provision of the statute taken from him, it must, so far as the power of the court is concerned, remain with him:

After a full investigation of the question and a review of the authorities, we are satisfied that the doctrine announced in Hardy v. Herriott was the correct one and we therefore affirm it. The j udgment of the lower court will therefore-be reversed and the court instructed to proceed in accordance with this.opinion.

Anders and Gordon, JJ., concur.