(dissenting).—I am forced to dissent from the statements and conclusions of the foregoing opinion, and will briefly state my reasons for so doing.
The discussion therein has been confined to an affirmance of the doctrine announced in the case of Hardy v. Herriott, 11 Wash. 460 (39 Pac. 958), to stating further reasons therefor, and to the citation of additional authorities in its support. If the full legal title passed to the purchaser, at an execution sale, before the period of redemption had expired, as stated in that case, there would be little room to doubt the correctness of the conclusion arrived at by the majority. But the question of title was not involved, and whatever was said upon that question was not necessary to a decision of the case, and for that reason not entitled to consideration as authority. Beside, even the dictum of that case has been substantially qualified by what was said in the case of Hays v. Merchants Bank of Port Townsend, decided March 5, 1896, by the learned judge who wrote it. Hence, what was said as to the nature of the title of the purchaser before the time for redemption had expired is without' binding *196force. And the opinion of the majority is not based upon what was held in Hardy v. Herriott as to the nature of the purchaser’s title before the time for redemption had expired. The nature of such title has never been authoritatively defined by this court. But what was said in the case of Hays v. Bank, supra, justifies the assumption that it will eventually be held that the legal title does not pass until the expiration of the time in which the property could be redeemed.
Such seems to be the necessary construction of our statute. If the legal title passed at the time of the sale, there would be no occasion for a deed from the sheriff after the time for redemption had expired. The legal title to real estate is in nearly or quite all cases required to be conveyed by deed, and the making of the deed by the sheriff, after the right to redeem has been lost, is but a compliance with this requirement. If the formal conveyance by deed by the sheriff is not for the purpose of conveying the legal title, it is difficult to perceive what it is for. Beside, no action of the purchaser is required to restore the judgment debtor to his estate in case of redemption.
Courts of other states having substantially the same statutory provision that we have, have uniformly held that the legal title did not pass to the purchaser until the time for redemption had expired. See Harris v. Reynolds, 13 Cal. 515 (73 Am. Dec. 600); Page v. Rogers, 31 Cal. 294; Clement v. Shipley, 2 N. D. 430 (51 N. W. 414).
Hence, I feel justified in assuming, as a basis for the decision of the question presented upon this appeal, that the legal title does not pass to the purchaser until after the right to redeem has been lost. The statute cited in the majority opinion shows clearly that whatever the nature of the title of the purchaser, *197he is entitled to the possession of the property unless the same he in the possession of a tenant holding under an unexpired lease; and in such case he is entitled to receive from such tenant the rents or value of the use and occupation of the property, and it is upon these provisions that the conclusion is founded that the money or use and occupation which the purchaser is entitled to receive becomes his absolute property, so that his right thereto is not affected by a redemption. Such a construction of these provisions is liable to work such injustice and inequality that it should not be adopted unless the language used makes it absolutely necessary.
To show that such a construction may work the greatest injustice it is only necessary to refer to the facts in the case at bar. During the short time intervening between the sale of the property and its redemption several thousand dollars were received by the defendants as rental for the property, and upon redemption they received, in addition thereto, the full amount of their bid with interest thereon at the rate of one per cent, per month. It is difficult to conceive upon what equitable ground it can be claimed that the defendants were entitled to the amount of their bid, which represented the entire debt, all taxes paid by them and one per cent, interest thereon, and in addition between two and three thousand dollars for the use of the money for a few months. That the legislature intended such results I cannot for a moment believe. The legislature could never have intended that a purchaser at a sale should receive a large sum of money which might be due for rents the day after the sale, and be entitled to retain it as his own if the property should be redeemed and the full amount of the purchase price with interest and costs *198paid to him by the judgment debtor the day after such rents had been collected.-
It is not necessary to say more to prove that the construction placed upon the statute makes it one of great harshness. But that fact cannot prevent such construction, if there is no other possible, however great may be the injustice flowing .therefrom-.- But the fact that such injustice may result from such construction should make the courts swift to find another, if the terms of the statute will admit of their so doing. In my opinion our statute will fairly admit of a more equitable construction than that placed upon it by the majority of the court. The whole chapter relating to the sale of real property under execution will best be given full force by -holding that in the scheme for the sale of such property upon execution, and for its redemption from such sale, two conditions were intended to be provided for; one, when the sale was followed by a redemption, and one when it was not; that it was the intention to give to the purchaser such rights from the date of the sale that he would be protected in paying full value for the property, if no redemption was made, by the judgment debtor - or those claiming under him; and that in the event of the property being redeemed, he should ^obtain no benefit from any right to the property, but should be recompensed for the money paid upon the sale by having it returned with the interest provided by the statute. ' r '
To effect the first it was necessary that-the'-right to the possession of the property and to the rents and profits therefrom should go to the purchaser from the date of the sale- and should, become absolutely his, if the property was not redeemed. To effect the other, the redemption was to determine all the rights of the *199purchaser. These intentions seem to me to be apparent from the provisions of the statute; the first from the provisions of the section relied upon by the majority and hereinbefore referred to; the second by § 515, which provides among other things, that—
“ If the judgment debtor redeem at any time before the time for redemption expires, the effects of the sale shall be determined, and he shall be restored to his estate.”
The policy of the law' requires that judgment creditors should be treated alike; that like judgments should require the payment of like amounts before they are legally satisfied. This construction will fully subserve this policy while the other will make it possible that one judgment creditor should receive a much larger return for the money represented by his judgment than another owning a judgment of like amount. The purchaser having the right to the possession and the rents, issues and profits from the date of the sale, derives the same benefit from the purchase if there is no redemption as he would if the sale was- absolute and the entire title passed at the time of the sale. His rights in the property, if he ever obtains anything more than a lien thereon, date from the sale and grow out of the fact that no redemption is made by the judgment debtor or those holding under him. If redemption is made, the object for which the statute allowed him to have possession of the property has been fulfilled, and his conditional interest therein has no longer force. And, as his entire interest was conditional and could only be made absolute in connection with the legal title to be cast upon him by failure to redeem, such interest was terminated and lost when the property was redeemed.
This construction can work no hardship to a pur*200chaser. He simply makes a conditional purchase of the property. If it results in a completed purchase, he gets the same benefits as though he had received a perfect title at the time of the sale. If, on the other hand, redemption prevents the passing of title, he receives instead of the property its cash value with a large rate of interest added thereto, and must account for rents and profits, or use and occupation, as the trustee of the judgment debtor. If he does not care to assume any responsibility for use and occupation, he is at liberty to leave the judgment debtor in possession, and if he does so, will not be liable for use and occupation.
In most of the states there are statutes which are in substance the same as ours and were enacted for the same purpose, and in nearly all of them the equitable rule for which I am contending has been sustained. This will sufficiently appear from an examination of 2 Jones on Mortgages, §§1114-1143, and 3 Pomeroy’s Equity Jurisprudence, § 1216, and the authorities cited by those learned authors in support of the text.
The only cases which have been called to our attention adopting the rule announced by the majority of the court are those from the State of California and a single one from the State of North Dakota, founded . upon such California cases, and in several of these the question here involved was not presented.
The primary right to receive the rents and profits until redemption was the subject matter under consideration in mqst of the cases, and the' few which have decided the exact question here involved do not give evidence of that careful consideration which would justify a reliance thereon for the establishment of a doctrine fraught with inequality and injustice.
In my opinion the judgment should he affirmed.
Scott, J., concurs in dissenting opinion.