Webster conveyed her dower right to S. C. Rogers September 17, 1912, for a consideration of $25. On May 28, 1915, plaintiffs filed their complaint, alleging that they are the owners of the property, and praying that the sheriff's deed to Frank Rogers be set aside as a cloud upon their title. It will not be necessary to review the pleadings; it is enough to say that they were sufficient to present the questions on which the case turns. The circuit court dismissed the complaint, and plaintiffs appeal.

W. T. Slater, of Portland (Stoll & Hodge, of Marshfield, on the brief), for appellants. A. J. Sherwood, of Coquille (L. A. Liljeqvist and Bennett, Swanton & Bennett, all of Marshfield, on the brief), for respondents.

MCCAMANT, J. (after stating the facts as above). Plaintiffs rely chiefly on the fact that the sheriff's deed was not issued to Frank Rogers until October 29, 1906. The sale was made on an execution based on a judgment recovered October 3, 1892. The execution was issued March 11, 1896. A period of more than 10 years elapsed between the date of this execution and the date of the sheriff's deed; it appears that no further executions were issued in the interim. Section 241, B. & C. Code, then in force and since repealed, was as follows:

"If, at any time after the entry of judgment, a period of ten consecutive years shall have elapsed without an execution being issued on such judgment during such period, no execution shall thereafter issue on such judgment, and such judgment shall thereafter be conclusively presumed to be paid and satisfied unless an execution be issued thereon within one year from the passage of this act."

Plaintiffs contend that a sheriff's deed cannot lawfully issue after the judgment on which it is based has lost, its vitality. We are cited to a long line of authority to the effect that a valid sale cannot be made under an execution issued on a dead judgment. Plaintiffs cite the following cases in support of their ultimate contention that when the life of a judgment ends a sheriff's deed cannot thereafter issue to consummate a sale made while the judgment was effective. Dixon v. Dixon, 89 App. Div. 603, 85 N. Y. Supp. 609; Middlesboro Water Co. v. Neal, 105 Ky. 586, 49 S. W. 428; McCall v. White, 73 Ala. 562; Rucker v. Dooley, 49 Ill. 377, 95 Am. Dec. 614; Harmon v. Larned, 58 Ill. 169; Cottingham v. Springer, 88 Ill. 90; Peterson v. Emmerson, 135 Ill. 55, 25 N. E. 842; Rann v. McTiernan, 187 Ill. 193, 58 N. E. 390; Bradley v. Lightcap, 202 Ill. 154, 67 N. E. 45. The later Illinois cases do not tend to support plaintiffs' contention, because they are based wholly on an Illinois statute which forbids the execution of a sheriff's deed after the lapse of 5 years from the expiration of the period of redemption. The authority of the earlier Illinois cases is destroyed for the purposes of this case by the decision in Cot

case squarely holds that objection to a sheriff's deed on the ground here asserted is available only to an innocent purchaser from the execution defendant; it cannot be urged by his heirs.

The Alabama case holds that, when a sheriff's deed is applied for 10 years after the sale, in the absence of evidence that the purchaser has been in possession, an explanation of the delay should be offered. The doctrine of this case does not help plaintiffs. It abundantly appears that all acts of dominion over the property in dispute were exercised by S. C. Rogers at all times after the sheriff's sale, and that when the sheriff's deed was secured his possession was actual, hostile, and complete.

As we read the Kentucky case it does not hold that a sheriff's deed must be executed

during the life of the judgment under which the sale is made. In that case the sale was made in 1853; there was no satisfactory proof that the purchase price had ever been paid; the defendant in the writ continued to live on the land for 7 years after the sale; the plaintiff in the writ lived in the immediate neighborhood, and must have known of the occupancy of the land; it was doubtful if the purchaser had ever been in possession, but, if so, he had given up possession prior to the Civil War; the sheriff's deed was executed in 1894, 41 years after the sale. It was held that a conciusive presumption should be indulged that the debtor had redeemed from the sale.

The case of Dixon v. Dixon, 89 App. Div. 603, 607-609, 85 N. Y. Supp. 609, turns largely on the fact that the deed was executed 43 years after the sale The opinion lays some emphasis on the expiration of the lien of the judgment before the issuance of the deed. Under the laws of New York in force at the time when this sale was made there was no requirement that the sheriff should report his proceedings, nor was any provision made for confirmation. 3 Rev. Stat. N. Y. (5th Ed.) pp. 651-655. The sale which took place was an execution, as distinguished from a judicial, sale. If such a sale is made in violation of law, the title of the defendant is not disturbed, and the judgment of plaintiff is not impaired. There is no provision for curing the defects by an order of confirmation passed after the expiration of a period allowed for exceptions to the regularity of the sale.

[1, 2] Under the Oregon statute a sale on execution partakes of the character of a judicial sale. It must be reported to the court; it becomes effective to start the period of redemption only when it is confirmed. The Oregon statute allows a time after the filing of the report of sale within which any party interested may call the attention of the court to irregularities in the sale. The confirmation of the sale is an acceptance by the court of the bid of the purchaser. The judgment

in whole or in part in accordance with the price for which the property is sold. In any event the judgment is satisfied to the extent of the purchase price. The rights of the purchaser are based on the price paid for the property and credited on the judgment. In the event of redemption the purchaser receives this sum with interest. He is not concerned with the remainder of the judgment debt, and we cannot see why the expiration of its lien should affect his right to a sheriff's deed. As to the distinction between execution and judicial sales, see 17 Am. & Eng. Enc. Law (2d Ed.) 956; Rorer on Judicial Sales (2d Ed.) 247; Noland v. Barrett, 122 Mo. 181, 26 S. W. 692, 43 Am. St. Rep. 572.

In Talbot v. Cook, 57 Or. 535, 538, 112 Pac. 709, 710, Mr. Justice Burnett discusses Dixon v. Dixon, supra, and distinguishes the New York law from the Oregon law on another ground which is conclusive of this branch of the controversy. His opinion states:

"No limitation is expressly provided by our Code against the time within which a sheriff may execute a deed to the purchaser at a fore

closure sale."

The statute in force when the sheriff's deed to Frank Rogers was executed, section 1035, B. & C. Code, is as follows:

"The former sheriff shall return all process, whether before or after judgment or decree, which he has fully executed, and shall complete the execution of all final process which he has begun to execute: Provided, that in all cases where real property has been or may be sold under execution by any sheriff, and he shall fail or neglect during his term of office, by virtue of the expiration thereof, or otherwise, to make or execute a proper sheriff's deed conveying said property to the purchaser; or if through mistake in its execution, or otherwise, any sheriff's deed shall be inoperative, the sheriff in office at any time after such purchaser shall be entitled to a deed shall execute such conveyance, and such conveyance so executed shall have the same force and effect as if made by the sheriff who made the sale."

A fair construction of this statute negatives this contention of plaintiffs. The sheriff is required to execute the conveyance "at any time after such purchaser shall be entitled to a deed." To hold that the purchaser's right to a deed expires with the lien of the judgment under which the property is sold would be to read into the statute words which the Legislature has not written there and to disregard the legislative intent manifested by the language above quoted.

[3] Plaintiffs' charges of fraud are not borne out by the evidence. The sale took place at a time when Webster had left the state and abandoned all intention of settling with his creditors. He had executed eight

Rogers mortgage for $500, and to the lien of 12 judgments aggregating $7,038.10. No witness gives the property such a value as to allow Webster any beneficial interest in it over and above these liens. The preponderance of the testimony shows that Webster's half of the property was worth far less than the liens with which it was incumbered. Rogers had paid all taxes levied from 1890 to 1896. He was carrying Webster for $200 in excess of the mortgage debt. He was entitled to a settlement.

Mr. Bennett is not subject to criticism for suggesting a sale under the Eichold and Miller judgment in lieu of the burdensome and expensive remedy of foreclosure. The result was a credit to Eichold and Miller of $13.75 in excess of the expenses of sale. The Rogers mortgage was the first lien on the land. The Eichold and Miller judgment was an honest debt. The proceeding was not collusive, but was an effort of a patient creditor to make some salvage on an indebtedness which would have been wholly lost in the absence of affirmative action on his part. The proceedings were strictly in accord with the statute. The case has nothing in common with Conklin v. La Dow, 33 Or. 354, 54 Pac. 218.

[4] It is argued that Webster's mortgage to S. C. Rogers was defective, in that it described the accommodation note signed by Rogers as "a note to Flanagan & Bennett," whereas it was a note in favor of Walter Oldland, executed at the Flanagan & Bennett bank, evidencing a loan made through the good offices of the bank. The mortgage gave the date, amount, and maturity of the note correctly. It recited that Rogers signed the note as "security" for Webster. It is doubtful if this mortgage can be said to be defective under plaintiffs' authorities. See New v. Sailors, 114 Ind. 407, 410, 16 N. E. · 609, 5 Am. St. Rep. 632; Bowen v. Ratcliff, 140 Ind. 393, 397, 39 N. E. 860, 49 Am. St. Rep. 203. In any event the mortgage could have been reformed as against Webster in a Bramhall v. Flood, 41

foreclosure suit. Conn. 68.

[5] It is suggested that Rogers as the tenant in common of Webster was disqualified from purchasing. By mortgaging his interest in the property to Rogers, Webster consented that Rogers might buy at a foreclosure sale. Twin Lick Co. v. Marbury, 91 U. S. 587, 590, 23 L. Ed. 328; Rawlings v. New Memphis Co., 105 Tenn. 268, 60 S. W. 206, 214; Preston v. Loughran, 58 Hun, 210, 215, 12 N. Y. Supp. 313.

Under such charter provision, a freeholder of Portland should make his objection to street improvements in the beginning, since it is never too late for the city to amend a defect in ordinance for assessment therefor, provided only that somewhere the freeholder has had opportunity to be heard before his property is taken for payment of the tax.

Department 1. Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge. On rehearing. Rehearing denied. For former opinion, see 169 Pac. 90. W. P. La Roche and L. E. Latourette, both of Portland, for appellant. W. M. Gregory, of Portland, for respondent.

In

BURNETT, J. In his petition for rehearing the plaintiff lays much stress upon the case of Murray v. La Grande, 76 Or. 598, 149 Pac. 1019, as being in direct conflict with the former opinion in the instant case. prescribing the formula for street improvements the La Grande charter under which the Murray proceedings were had states in substance that when an improvement is proposed a committee of the council shall examine the property and make a report as to its valuation and extent and of the benefits to

be derived thereby on account of the proposed improvement. After receiving the report and before making any levy of taxes to plaintiff for the improvement the council must cause notice to be given in terms prescribed by the charter, giving sundry details not necessary here to mention, after which follows this language:

"After a compliance with this subdivision the council shall be deemed to have acquired jurisdiction to order the making of such improvements."

This is the only manner and time prescribed by the La Grande charter in which jurisdiction may be acquired. It is also said in the

same section:

"If any assessment is set aside by order of any court the council may cause a new one to be made in like manner for the same purpose for the collection of the amount so assessed.'

which the acquisition of jurisdiction was at tempted. It seems, therefore, that one effort to acquire jurisdiction would exhaust the prerogative of the council in that particular proceeding. It was conceded in that case that the city of La Grande had not done

the things prescribed by its charter as the necessary foundation of jurisdiction.

[1] The authority of the city of Portland under its charter is much more extensive and far-reaching. As pointed out in the former opinion, section 400 of the Portland Charter empowers the municipality to correct all manner of errors and irregularities whether they be "jurisdictional or otherwise." The distinction between the two charters is found in the fact that in that of La Grande there is provided but one point in the procedure where the city can acquire jurisdiction for any purpose and beyond which it cannot retrace its steps in its effort to amend its errors; while that of Portland enables the municipality to go back and begin again even to rectify any lack of authority not excepting the absence of jurisdiction itself. In brief the Portland charter permits correction of jurisdictional defects, while that

of La Grande under consideration in the Mur

ray Case did not.

So it is a possible event that acting either directly or through the agency of contractors the city may have laid down a pavement as stated in the complaint herein before discovering its mistake in supposing it had acquired authority to do so. Yet it is not powerless to escape the consequences of such a blunder, alvolve the exercise of the taxing power. The though the effort to extricate itself may incomplaint does not differentiate the plaintiff's grievance from such circumstances. He argues that a mere volunteer might pave a street and the city could pay for it, but his complaint does not state such a case. question is not presented on the record before us, and we make no intimation what the decision should be if the city, as an act of its sovereignty, should adopt some completed but unauthorized work of the kind which it deemed of real public benefit, and as an exercise of its taxing prerogative should essay to lay a special impost with which to raise funds to pay for it.

That

[2] Under the present Portland charter it behooves the freeholder to be vigilant in respect to street improvements in his vicinity and resist them in their incipiency if he has cause for doing so. He cannot safely wait until a pavement is installed and then for the first time begin to object, for that is one of the things the city can put in the street