
    [No. 6062.
    Decided August 15, 1906.]
    Joseph A. Hyde et al., Appellants, v. Oscar G. Heaton et al., Respondents.1
    Mortgages — Foreclosure — Sale — Confirmation — When to Be •Made. Confirmation of a sale of mortgaged premises under a decree of foreclosure and execution levy may be made more than six years after tbe date of sale, the statute relating to the duration and revival of judgment liens having no application; since the sale satisfied the judgment and passed the equitable title to the land, regardless of the confirmation.
    Lis Pendens — Effect—Mortgages—Foreclosures. In an action to foreclose a mortgage in which notice of Us pendens is filed, it is not necessary 'for the purchaser to record the certificate of sale in order to give notice to subsequent purchasers, even though six years elapse before confirmation of the sale.
    Appeal from a judgment of the superior court for King county, Griffin, J., entered June 24, 1905, in favor of the defendants, on the pleadings, after sustaining a demurrer to the affirmative matter in plaintiffs reply, in an action of ejectment.
    Affirmed.
    
      H. D. Moore, for appellants'.
    
      S. H. Steele, for respondents.
   Dunbar, J.

Appellants brought this action in ejectment to recover possession of certain lands described in the complaint, alleging therein that on May 23, 1904, they became seized in fee and possessed thereof and that afterwards, on August 24, 1904, while they were so> seized and possessed, respondents entered without right or title and ousted appellants, and that" they now unlawfully withhold such possession. The respondents denied thesei allegations, and for affirmative defense alleged, that on September 30, 1891, one Charlotte Cannon, then being the owner of the land described in plaintiffs’ complaint, for value, duly executed and delivered a mortgage thereon to the Guarantee Loan & Trust Company, for the. sum of $400, which mortgage was duly filed and recorded, etc.; that afterwards the said Guarantee Loan & Trust Company duly assigned and transferred said mortgage to one Julia I. Gelston; that on April 29, 1895, the said Charlotte Cannon siold and conveyed the premises to' one Emily Taylor, subject to said mortgage; which deed was- filed for record, etc.; that on May 28, 1897, the said Julia I. Gelston commenced an action against the said Charlotte Cannon and Emily Taylor in the superior court of. King county, to foreclose said mortgage and sell said premises; that at the time of filing the complaint in the above entitled action, a lis pendens was duly filed and recorded; that the said Emily Taylor was duly served with summons and a copy of the complaint; that the said Charlotte Cannon was duly and legally served with summons by publication; that on September 16, 1897, the superior court of King county, Washington, then having jurisdiction of the subject-matter and of the ipjarties and of the default of said Charlotte Camion and Emily Taylor, duly and legally entered a decree in said action in favor of Julia I. Gelston for the amount demanded, and foreclosed said mortgage and ordered the premises sold in the manner provided by law for the satisfaction of said debt, said judgment providing that the said Charlotte Cannon, Emily Taylor and all persons holding by, through, or under them, are forever barred, cut off and estopped from having or claiming any interest in said land; that on September 23, 1897, an execution was duly and legally issued and delivered to the sheriff of King county, Washington, commanding him to levy on the above described land and sell the same in the manner provided by law in satisfaction of the said debt; that on Sepr tember 24, 1897, said sheriff duly and legally levied such execution on the above described land; that on October 30, 1897, the sheriff of King county, Washington, in pursuance of said decree, execution and levy, after giving notice, etc., sold said land in the manner provided by law, to Julia I. Gelston, subject only to redemption in the manner provided by law, for the sum of $516.92, which sum was then and there paid hy the said Julia I. Gelston for said land, and the sheriff of said county then and there issued and delivered to the said Julia I. Gelston a certificate of purchase of said land, and duly and legally reported said sale to the superior court of King county, Washington; that on October 30, 1897, said Julia I. Gelston filed a motion in said ease for the confirmation of said sale; that on June 9, 1904, the time for redemption having expired and said property not having been redeemed from said sale, the superior court of King county, Washington, entered an order confirming said sale to said Julia I. Gelston; that afterwards the sheriff delivered a deed to said Julia I. Gelston for the said land. The answer seta up the conveying of the title from Julia I. Gelston through different parties to the respondents. Other matters and" defenses,' in relation to the redemption of the land from tax liens by the respondents^ are set forth in the-answer, but with the view we take of the law on the main case it is not material to enter into a discussion of these subsequent questions.

The plaintiffs’ reply denied the right of the parties making the several deeds to deed the property as against the rights of the plaintiffs; set up the fact that the judgment was rendered on the 16th day of September, 1897, and that the sale was not confirmed until in June, 1904; that more than six years elapsed between the date of said sale and the date of said confirmation, and that no proceedings were ever had to re-vive said judgment, and that no notice of said confirmation was ever served upon the judgment debtors or the plaintiffs herein; alleged that the plaintiffs were, at the time of the filing of said motion for confirmation, the holders of the legal title of record; that said judgment was never satisfied upon the judgment docket; that by reason of the lapse of time the judgment had become dead, null, and of no effect; that by reason thereof the court had lost jurisdiction to entertain a motion for confirmation and to make an order of confirmation, and that the judgment, order of confirmation of said salei, and said sheriff’s deed issued thereunder were void, but that they constituted a clo-ud upon plaintiff’s title to said lands; set forth that they purchased the lands for a valuable and fair consideration without any notice of the claim, title, equity, interest or lien of said Julia I. Gelston, or any other person; alleged that by reason of the failure of the said Julia I. Gelston to take possession of said lands or to obtain a confirmation of said sale or to record tbe certificate of purchase, the said Julia I. Gelston and her grantees are now estopped from asserting or claiming title adversely or against said plaintiffs'. To this reply tbe defendants' demurred, which demurrer was sustained. Afterwards defendants asked for judgment on the pleadings, which was granted, and the appeal is taken from said judgment.

The appellants claim title through Emily Taylor, who deeded the oland to U. M. Perry on May 21, 1904, and Perry to the appellants on May 23, 1904; so that it will he seen that the principal contention in this case is, that the court was without jurisdiction to confirm the sale after the lapse of six years from the entering of the judgment of foreclosure. It is asserted by the appellants that this court has held that a judgment becomes inoperative for any purpose after .the time prescribed by statute fo'r the duration of this lien, citing Brier v. Traders’ Nat. Bank, 24 Wash. 695, 64 Pac. 831; Packwood v. Briggs, 25 Wash. 530, 65 Pac. 846, and Hardin v. Day, 29 Wash. 664, 70 Pac. 118. But Brier v. Traders’ National Bank, supra, and the cases which followed it, do not touch upon or discuss the proposition involved in this case. In Brier v. Traders’ National Bank it was held that no judgment could be revived unless proceedings therefor should be commenced within six years after the date of its rendition, and that the act of revival does not make the lien continuous where application therefor is not made until after the expiration of the five years; and where the lien has ceased prior to the order of revival, it cannot be revived so as to affect the rights of a purchaser who had acquired title subsequent to the original judgment; that such after-acquired title has priority over the judgment during the interval between the cessation and revival of the judgment lien. In Packwood v. Briggs, it was held that the execution was void at the time of the attempted sale, and that there being no lien in existence, there could have been no authority for the sale under any execution that might have issued. Hardin v. Hay and many subsequent cases were based upon the same idea, viz., that the sale of land on execution, made more than five years after the rendition of the judgment, was void where the judgment had not been; revived.

But this is not a judgment lien; nor do we readily see how there eould have been any legal attemp(t to revive this judgment, for the judgment had been merged into an execution, and the execution had been followed by sale, and the payment of the purchase money into, court. So that the pertinent question here is, not whether a lien obtained by a judgment has expired, but what interest in the land was conveyed to the creditor by the sale of the land by proceedings subsequent to foreclosure. Confirmation is simply the judicial sanction by the court of the sale, completing the legal transaction. It does not have the virtue of the sale itself, but is judicial evidence of the sala It relates back to the time of sale, and supplies all defects excepting those founded in want of jurisdiction or in fraud. If the sale was made without jurisdiction, it could not be cured by confirmation. So that it is the legal sale and payment of the purchase price which gives the equitable interest to the purchaser, and not the confirmation, which' is more of a ministerial act. It therefore follows that the purchaser has more interest than that of a mere lien on the land sold, and that the statute prescribing the duration of liens and judgments does not affect him. Respondents cite many cases sustaining this position, notably Link v. Connell, 48 Neb. 574, 67 N. W. 475, which’ is very nearly parallel with the case at bar, and decides every pertinent question raised in the case a.t bar. There, as here, it was claimed that the action of the court in confirming the sale was without jurisdiction by reason of the lapse of time, and the court said that that question had been determined adversely to the contention in Day v. Thompson 11 Neb. 123, where it was contended that whatever rights the purchaser had acquired were lost through his laches in failing to demand a deed. But the court, in that case, at page 127, quoting the statute, which is similar to ours, said:

“Under the provisions of this section the pendency of the attachment was notice to third persons from the time of the publication of the notice, and this notice continued dui’ing the pendency of the action. And the jurisdiction of the court continued until the deed was executed

citing a case from Ohio, viz., Beaumont v. Herrick, 24 Ohio St. 445, where, under statutes similar to ours, it was held that the pendency of an action of foreclosure continues for the purpose of the enforcement of the decree until confirmation of the sale and disposition of the proceeds thereof, and that the decree in such case did not become dormant although more than five years had elapsed 'without issue of an order of sale, five years being the life of the lien in that state; also citing Bennett on Lis Pendens, .page 173, where it was said:

“When jurisdiction has attached to- the res, the general rule should be that the suit will pend, so long as it is not dis>missed by the court, sua sponte, or for want of prosecution, or upon the motion of the parties, or be brought to a close by reason of some statutory provision or rule of court having force of law. . . . When the elements of a valid lis pendens exist, and the Court, in the enforcement of its acknowledged jurisdictional power, shall proceed to judgment or decree and its execution, if it were permissible for the same or another court in a collateral proceeding to say that there had not been a valid lis pendens binding upon the res it would amount to the nullification of a judgment or decree where the court had acknowledged jurisdiction. Such a result would be most disastrous and ought never to occur.”

It was also determined in that case that the question of the jurisdiction of the court in an action of this kind, viz., the foreclosure of a mortgage, could not bei raised upon a collateral attack.

But, outside of that question, it seems to us that the issues in this case have been determined in favor of the respondents, by this court, so clearly that outside authorities are of little moment. In discussing the value and effect of confirmation, we said, in Morrow v. Moran, 5 Wash. 692, 32 Pac. 770, that it was not the confirmation that gave the equitable title to the land, but it was the purchase at the execution sale and the payment of the purchase price according to the terms of the sale; that if the proceedings had been regular upi to the' time of and including the sale, the equitable title would pass to the purchaser, and that the confirmation was really only the announcement of the legal determination of these facts. In Diamond v. Turner, 11 Wash. 189, 39 Pac. 379, it was held that a certificate of sale passed the substantial title of defendant at execution salei, and the fact that a deed in -pursuance thereof was executed to the purchaser after his death, would not defeat the title of those claiming under him, the court saying:

“The certificate oi purchase and confirmation of sale were alone essential to pass the substantial title of the defendant in the execution to the purchaser at the salei The execution of the deed after the time for redemption had expired was a purely ministerial act on the part of the officer, and could have been -eonrp]elled by the purchaser, or those ¿aiming under him, at any time in a proper proceeding for that purpose. Until the sale had been set aside*, a certificate of purchase would he as fully protected as though' the legal title had been conveyed by deed made in pursuance of the statute.”

Under these authorities the respondents had an equitable interest in the land and, although the confirmation of the sale was necessary to complete the lega-l title;, the equitable title existed and could not he affected by the lapse of time, unless, by the negligence of the* holder of the equitable interest in not obtaining the confirmation for an unreasonable length of time 'outside of the statutory provisions, innocent parties were misled and made to suffer by reason of such negligence. In such cases a large discretion is vested in courts to* determine, under all the circumstances of the case, when such time has expired. But there is nothing in this case, that would bar the respondents from asserting their right on account of negligence.

It is contended, however, by the appellants that, in case title did plass to* the respondents through the sale, the certificate of sale should have been recorded in order to give notice to innocent purchasers. Notice was given by the filing of the lis pendens, and under universal authority, such notice holds good until the: determination of the case. No notice of subsequent proceedings after default is required by the statute. It was decided by this court iu Norris v. Campbell, 21 Wash. 654, 68 Pac. 339, that Bal. Code § 4886 (P. O. § 342), which provides that a defendant after appearance* in an action is entitled to notice of all subsequent proceedings, is not applicable where defendant has been adjudged to be in default, and hence notice of proceedings subsequent to default was unnecessary; citing Mendenhall v. Kratz, 14 Wash. 453, 44 Pac. 872. In this case default was entered against the defendants.

Hoi error appearing, the judgment is affirmed.

Mount, O. J., Chow, Fullerton, and Root, JJ., eon-cur. 
      
       Reported in 86 Pac. 664.
     