Capital journal. (Salem, Or.) 1893-1895, 1895-07-22

I a
price until the court had prescribed
what part, less than the whole, should
be paid in coin.
The order Of october 20, 1894, also
provides that: "All taxes legally due
and owing by the defendant companies
up 10 the 3lst day Of March, 1894 shall
be paid out. of the purchase money
realized from such sale, by and under
the order Of this court, and all taxes
levied against such properties and fran
chises after the 3lst day of March, 1884
shall be borne and paid by the pur-
chaser or purchasers at such SALE"
1t is cOntended that the order pro-
yiding for the payment OF the taxes
levied on the property of the defendant
companies prior tO March 81, 1894, sub
stantially modified the original decree
and prejudged the rights OF the Hen
holders without having given them an
opportunity to question the validity OF
such taxes; and that the portion there
of requiring the purchaser to pay the
taxes levied after the date WAS invalid
and tended to reduce the amount of
the purchasers bid to the extent of the
uDascertained tax.
We cannot think, from an exami'
nation Of the order, that the court in
tended thereby to determine the ques-
ton of priority of right to the fund
which was TO be realized from the sale
Of the property. The record shows that
the counties of Benton, Lincoln, Linn
and Marion, upon their petitions to the
court obtained in order directing the
receiver to pay the taxes due them
from the defendant companies which
in effect transferred the rights which
the said counties had in the property
situated within their respective limits
to the fund to be realized from its sale,
which fund wrs to be applied to the
payment Of these taxes "by and under
the order of the court" The court In
the order complained OF did not fnd
what amount of tax, If any, was due
either county uP attempt to establish a
prior or any lien in favor of the said
counties. 1t, In effect, provided that
the fund realized from the sale should
stand in the place Of the property and
upon settlement be distributed among
those having a prior right to it. II the
counties had no prior lien on the pro-
perty for the payment Of the delin-
quent taxes they could have no prier
claim on the fund to be realized from
its sale. How could the appellants be
injured by this order? II anyone had
cause to complain it woRld be said
counties, and particularly so if the
fund was insufficient to pay the delin-
quent taxes, but they have made no
objection to the provisions imposed,
with which they are presumably salts
| fed.
While the requirement that the pur
chaser should pay all taxes levied on
the property after March 81, 1894, may
have had the effect to reduce the
amount of his bid, it was not in our
judgment invalid, for if the sale had
been consumated prior to the issue OF
the warrant for the collection of the
taxes of that year and no agreement
had been entered into in reference to
J heir payment, 1t would have been the
| duty of the purchaser to pay them.
(HilPs code p 2846.) The trial court in
| liking the day of sale not later than
December 22d, was doubtless aware
that IL would be impossible for the
state board equalization to complete its
examination OF the county assessment
rolls and certify the result to the
several county clerks In time to have
the tax rolls completed and warrants
issued for the collection Of taxes until
after that date and we can see no in
jury resulting from the courts order
calling the purchasers attention to the
provisions of the statute In relation TO
his duty 70 pay the taxes of 1894.
The court acquired jurisdiction of
the subject matter OF the suit by virtue
Of the constitution and statutes OF the
states, and OF the persons OF the defen-
dant companies by their several an
swers admitting the allegations OF the
original and supplemental complaints,
and the court having found the
amount due from the defendants 10
the plalntiff, and that this sum was
secured by . deed Of trust, fOreclOsed
the same and ordered a sale of the
mortgaged property, and having had
jurisdiction OF the subject matter and
persons OF the defendant companies Ito
decree was final and fully supports the
sale OF the defendants property, unless
il has been modified by the subsequent
orders OF the court,
Mr.. Beach In his valuable work on
Modern Equity Practice Up. sOo) In
speaking of the power Of = court to
control the execution OF its decree,
says; Notwithstanding the general
rule that the court has no power what
ever after final decree 10 amend,
modify or alter the proofs Of the decree,
II retains aud possesses the power Of
controlling the time Of its execution"
The authorities cited In support Of the
text ares Bound v, South Carolina
Ry. Co., 55 Fed. II. 1885, M0nkhOuse v.
Corporation, N Yes. $780, Edwards v,
Cunlitfs, Madd psf Hpann v, spann,
2 Hill's Oh, Pr, ~. Ia Bound v, \.
&. Ry, Co., supra, the decree ordered
the sale 0f q railroad 10 he nads on
April ~, 1898, aud an appeal having
been taken Ia which no supeTssdeas
bond Was given, the court, on motion,
after adopting the Language quoted in
the teHt, postponed the sale 20 Deeeml
ber 18Th of that year, la Monkhonss
" Corporation, supra the plaintirl
having having oblained deolse hEe'
ol0sipR q moTlgages the defenaani
moved tbs eouft 90 suspend uniil slx
months after 40 appeal could bs heard,
which Dlotl0n WAS ellowed ullon oon
dilion that the defendant pay tbs
lpleTen and casts, up0n pialnllns
undertaking 40 ropay the seize, n ihe
decree should b. reversed, ia fdNsIl
v runllH, supra, tbs deeres provided
that unleas Ills Rnl0uni aus hes paid
neQeubsF "A 1914 iho uloTtaaHa flfer