Balfour v. Burnett

*74 Opinion by Mr. Justice Moore.

1. The statute prescribing the manner oí sale, so far as applicable to the case at bar, is as follows: “When the sale is of real property, and consisting of several known lots or parcels, they shall be sold separately or otherwise, as 'is likely to bring the highest price, or when a portion of such real property is claimed by a third person, and he requests it to be sold separately, such portion shall be sold separately”: Hill’s Code, § 292. A proper definition of the term “third person” is important in the determination of the defendants’ right to insist upon a separate sale of that portion of the mortgaged premises so claimed by them. Bouvier, in his law dictionary, in defining the term, says: “But it is difficult to give a very definite idea of ‘third persons,’ for sometimes those who are not parties to the contract, but who represent the rights of the original parties, as executors, are not to be considered third persons”; while Anderson, in his more recent work, referring to the term, says: “Strangers are ‘third persons’ generally,- — all persons in the world except parties and privies. For example, those who are in no way parties to a covenant, nor bound by it, are said to be strangers to the covenant.” The latter definition would seem to make the term synonymous with strangers, but, since a person claiming a portion of the premises subject to the lien of a judgment must be in privity with the judgment debtor and bound by the judgment, he could not be a stranger to it, and hence the definition given by Anderson is not applicable to the term as used in the statute; for, if the person claiming a portion of the premises offered for sale were a stranger to the judgment, his property would not be bound by it, and *75 there would be no necessity to request a separate sale, and any attempt to sell it as the property of the judgment debtor would be restrained upon invoking the equitable powers of the court. In Leese v. Clark, 20 Cal. 425 , the court, interpreting an act of congress which, inter alifi, provided, “And be it further enacted that the final decrees rendered by the said commissioners or by the district or supreme court of the United States, or any patent to be issued under this act, shall be conclusive between the United States and the claimants only, and shall not effect the interest of third persons,” said: “The term ‘third persons’ refers not to all persons other than the United States and the claimants, but to those who hold independent titles arising previous to the acquisition of the county. The latter class are not barred by the decree and patent, for they do not hold in subordination to the action of the government, nor by any title subsequent, but by title arising anterior to the conquest.”

It will be seen that the court in this case limits the term to a particular class, and does not extend it to all persons other than the United States and claimants thereunder, thus conclusively showing that it is not in all casses synonymous with “stranger.” The term “third person,” as used in the statute under consideration, evidently means one who was not a party to the judgment or decree, but who has acquired a title to a portion of the judgment debtor’s real property subsequent to the rendition of the judgement or decree, and is privy to and bound by it. Having obtained his title subsequent to the lien of the judgment, he is entitled, upon request, to have that portion of the debtor’s estate claimed by him sold separately, in order that he may redeem it from the sale, but if he has secured a title to all the real property *76 which the judgment debtor had, or all that was subject to the lien of the judgment, he has put himself in the place of his grantor, so far as the property is concerned, and cannot insist upon a separate sale of any portion of it. In the case at bar the record discloses that the appellants were parties to the decree and are bound by it, and, applying the interpretation above given, they are not “third persons” within the meaning of the statute. Had they desired a separate sale of that portion of the mortgaged premises so claimed by them, they had the right to invoke the aid of the court to adjust their equities, and by a decree prescribe the manner of sale (2 Jones on Mortgages, § 1616); but, failing to apply for this relief when they were before the court, they cannot now claim to be “third persons” to the decree, and hence had no right to insist upon a separate sale.

2. The statute invests the officer making a sale of real property in such cases with a discretion which will' not be reviewed except for abuse: Griswold v. Stoughton, 2 Or. 64 ( 84 Am. Dec. 409 ); Dolph v. Barney, 5 Or. 211 ; Bank of British Columbia v. Paige, 7 Or. 455 ; Leinenweber v. Brown, 24 Or. 548 ( 34 Pac. 475 ); Bays v. Trulson, 25 Or. 109 ( 35 Pac. 26 ). And the sheriff having sold the premises era masse, it must be presumed that the method adopted was the one best calculated to realize the greatest amount for the property sold. There being no error in the order confirming the sale, it follows that it must be affirmed, and it is so ordered.

Affirmed.