§ 251. Mode of Redeeming. The mode of redeeming shall be as provided in this section: 1. The person seeking to redeem shall give the purchaser or redemptioner, as the case may be, two days' notice of his intention to apply to the sheriff for that purpose. At the time and place specified in such notice, such person may redeem by paying to the sheriff the sum required. The sheriff shall give the person redeeming a certificate, as in case of sale on execution, adding therein the sum paid on redemption, from whom redeemed, and the date thereof. A party seeking to redeem shall submit to the sheriff the evidence of his right thereto, as follows: 1. Proof that the notice required by this section has been given to the purchaser or redemptioner or waived; 2. If he be a lien creditor, a copy of the docket of the judgment, or decree under which he claims the right to redeem, certified by the clerk of the court where such judgment or decree is docketed, or if he seek to redeem upon a mortgage, the certificate of the record thereof; 3. A copy of any assignment necessary to establish his claim, verified by the affidavit of himself or agent; an affidavit by himself or agent showing the amount then actually due on the judgment, decree, or mortgage; 4. If the redemptioner or purchaser have a lien prior to that of the lien creditor seeking to redeem, such redemptioner or purchaser shall submit to the sheriff the like evidence thereof and of the amount due thereon, or the same may be disregarded. When two or more persons apply to the sheriff to redeem at the same time, he shall allow the person having the prior lien to redeem first, and so on, The sheriff shall immediately pay the money over to the person from whom the property is redeemed, if he attended at the redemption, or if not, at any time thereafter when demanded. Where a sheriff shall wrongfully refuse to allow any person to redeem, his right thereto shall not be prejudiced thereby, and upon the submission of the evidence and the tender of the money to the sheriff as herein provided he may be required by order of the court or judge thereof to allow such redemption. [L. 1862; D. Cd. § 302; H. C. § 305.] $ 252. Court May Restrain Waste. Until the expiration of the time allowed for redemption, the court or judge thereof may restrain the commission of waste on the property by order granted with or without notice, on the application of the purchaser or judgment creditor; but it shall not be deemed waste for the person in possession of the property at the time of sale, or entitled to possession afterwards, during the period allowed for redemption to continue to use it in the same manner in which it was previously used; or to use it in the ordinary course of husbandry; or to make the necessary repairs to building thereon; or to use wood or timber on the property thereof; or for the repair of fences; or for fuel in his family while he occupies the property. [L. 1862; D. Cd. § 303; H. C. § 306.] $253. Who Entitled to Possession. The purchaser from the day of sale until a resale or a redemption, and a redemptioner from the day of his redemption until another redemption, shall be 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. [L. 1862 ; D. Cd. § 304; H. C. $ 307.] The purchaser at a judicial sale is entitled to the possession of the property when not in possession of a tenant under an unexpired lease: Gest v. Packwood, 39 Fed. 532; Bank of British Columbia v. Harlow, 9 Or. 338; but this does not include the right to harvest for his own use the crop growing on the land at the time of sale: Cartwright v. Savage, 5 Or. 397; nor the right to retain the rents and profits; they must be accounted for in case of redemption: Balfour v. Rogers, 64 Fed. 927. But in case the land is not redeemed all crops pass with the lands, even those on which there is a chattel mortgage: Jones v. Adams, 37 Or. 475, 59 Pac. 811, 50 L. R. A. 388. It is intimated, though not decided, that an action for the possession of real property will not lie to enforce the purchaser's right to possession between the time of sale and redemption: Aiken v. Aiken, 12 Or. 206, 6 Pac. 682. An undertaking upon an appeal from an order confirming the sale of real property does not defeat or suspend the right of the purchaser at the judicial sale to the possession of the land: Bank of British Columbia v. Harlow, 9 Or. 338. CHAPTER VI. OF PROCEEDINGS AFTER EXECUTION. $254. Order to Examine Judgment Debtor. After the issuing of an execution against property, and upon proof by the affidavit of the plaintiff in writ, or otherwise, to the satisfaction of the court or judge thereof, that the judgment debtor has property liable to execution, which he refuses to apply towards the satisfaction of the judgment, such court or judge may, by an order, require the judgment debtor to appear and answer under oath concerning a referee appointed by such court or judge, at a time and place specified in the order. [L. 1862; D. Cd. § 305; H. C. § 308.] SUPPLEMENTARY PROCEEDINGS hereunder are purely legal in their nature and limited to a particular object and mode of investigation and can not be used to enforce a lien by virtue of a chattel mortgage: Knowles v. Herbert, 11 Or. 54, 4 Pac. 126, 11 Or. 241, 4 Pac. 126. Appellate proceedings applicable to actions at law are proper in such proceedings: Williams v. Gallick, 11 Or. 339, 3 Pac. 469. The property or funds of a private corporation, not having been declared a dividend in the hands of a stockholder, are subject to execution against the corporation, and the execution creditor is entitled to the remedy under this provision to enforce payment of his demand: Hughes v. Oregonian Ry. Co. 11 Or. 158, 2 Pac. 94. This proceeding is designed particularly to reach property which still remains under the control of the debtor, and is not intended to supersede the remedy by creditor's bill: Matlock v. Babb, 31 Or. 520, 49 Pac. 873. In supplemental proceedings the preliminary order for the examination of the judg ment debtor may be made by the judge, and the final order requiring the satisfaction of the judgment may be made by the court: State ex rel. v. Downing, 40 Or. —, 66 Pac. 917. A failure of the judgment debtor to appear before a referee for examination regarding property subject to execution does not render the order requiring him to satisfy the judgment void: State ex rel. v. Downing, 40 Or., 66 Pac. 918. An order in supplementary proceedings requiring defendant to apply certain money to the satisfaction of the judgment is not supported by a referee's finding that on a date more than three months prior to the reference he had such money in his possession, and that, no evidence to the contrary having been offered, he was therefore still in possession thereof, the presumption invoked to support the order being insufficient for that purpose: Hammer v. Downing, 41 Or. - 66 Pac. 916. A judgment creditor is not required to levy on and sell tangible property of the judgment debtor before invoking the aid of supplementary proceedings, as the statute authorizes such proceedings on the issue of an execution and proof that the judgment debtor has property subject to execution which he refuses to apply toward the satisfaction of the same: State ex rel. v. Downing, 40 Or. -, supra. A statement in the affidavit that the judgment debtor had property liable to execution which he refused to apply toward the satisfaction of the judgment, if believed by the court, or judge, is sufficient to authorize the issuance of orders requiring the judgment debtor to appear for examination and to satisfy the judgment, notwithstanding an attachment of certain tangible property without levying execution thereon, and the existence of sufficient tangible property to satisfy an execution: State ex rel. v. Downing, 40 Or. -, 66 Pac. 918. The fact that the order in proceedings supplementary to execution was voidable does not relieve from contempt proceedings for failure to comply therewith, where the court had jurisdiction of the proceedings at their inception: State ex rel. v. Downing, 40 Or. 66, supra. A tax warrant is not an execution in the sense that supplementary proceedings may be based thereon: Kirkwood v. Washington County, 32 Or. 571, 52 Pac. 568. § 255. Examination of Judgment Debtor. On the appearance of the judgment debtor, he may be examined on oath concerning his property. His examination, if required by the plaintiff in the writ, shall be reduced to writing, and filed with the clerk by whom the execution was issued. Either party may examine witnesses in his behalf, and if by such examination it appear that the judgment debtor has any property liable to execution, the court or judge before whom the proceeding takes place, or to whom the report of the referee is made, shall make an order requiring the judgment debtor to apply the same in satisfaction of the judgment, or that such property be levied on, by execution, in the manner and with the effect as provided in this title, as may seem most likely to affect the object of the proceeding. [L. 1862; D. Cd. § 306; H. C. § 309.] § 256. Debtor Restrained from Disposing of Property. At the time of allowing the order prescribed in section 254, or at any time thereafter pending the proceeding, the court or judge may make an order restraining the judgment debtor from selling, transferring, or in any manner disposing of any of his property liable to execution, pending the proceeding. Disobedience to any order or requirement authorized by sections 254, 255, and 256, on the part of the judgment debtor, may be punished as for a contempt. [L. 1862; D. Cd. § 307; H. C. § 310.] § 257. Debtor May be Arrested, Upon what Proof. Instead of the order requiring the attendance of the judgment debtor, as provided in the last two sections, the court or judge may, upon proof by affidavit of a party, or otherwise to his satisfaction, that there is danger of the debtor leaving the state, or concealing himself therein, and that there is reason to believe he has property which he unjustly refuses to apply to such judgment, issue a warrant requiring the sheriff of any county where such debtor may be to arrest him and bring him before the court or judge; upon being brought before the court or judge, he may be examined on oath, and if it then appear that there is danger of the debtor leaving the state, and that he has property which he has unjustly refused to apply to such judgment, he may be ordered to enter into an undertaking, with one or more sureties, that he will from time to time attend before the court or judge, as may be directed, and that he will not, during the pendency of the proceedings, dispose of any portion of his property not exempt from execution. In default of entering into such undertaking, he may be committed to the jail of the county by warrant of the judge. [L. 1862; D. Cd. § 308; H. C. § 311.] $ 258. Order to Examine Garnishee, in What Cases. Whenever the sheriff, with an execution against the property of the judgment debtor, shall apply to any person or officer mentioned in subdivision 3 of section 301, for the purpose of levying on any property therein mentioned, such person or officer shall forthwith give to the sheriff a certificate in the manner prescribed in section 304. If such person or officer refuse to do so, or if the certificate be unsatisfactory to the plaintiff in the writ, he may in like manner have the order prescribed in such section against such person or officer. Thereafter the proceeding upon such order shall be conducted in the manner prescribed in chapter III of title IV, from section 314 to section 323, inclusive. [L. 1862; D. Cd. § 309; H. C. § 312.] § 259. Public Officers Not Liable to Answer as Garnishees. REPEAED. § 260. When Defendant May be Arrested. No person shall be arrested in an action at law, except as provided in this section. The defendant may be arrested in the following cases: 1. In an action for the recovery of money or damages on a cause of action arising out of contract, when the defendant is not a resident of the state, or is about to remove therefrom, or when the action is for an injury to person or character, or for injuring or wrongfully taking, detaining, or converting property; 2. In an action for a fine or penalty, or on a promise to marry, or for money received, or property embezzled, or fraudulently misapplied, or converted to his own use, by a public officer, or by an attorney, or by an officer or agent of a corporation in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neglect in office, or in a professional employment; 3. In an action to recover the possession of personal property unjustly detained, when the property or any part thereof has been concealed, removed, or disposed of, so that it can not be found or taken by the sheriff, and with intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof; 4. When the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought; 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. But no female shall be arrested in any action, except for an injury to person, character, or property. [L. 1862; D. Cd. § 106; H. C. § 108.] |
