Eldridge v. Wright , 55 Cal. 531 ( 1880 )

Thornton, J.:

Eldridge instituted this action to quiet his title to a parcel of land situate in the City and County of San Francisco.

It appears from the findings of the Court below, that on the 26th of March, 1872, J. 13. and W. H. Fanvell, who were then owners of undivided moieties of the land in controversy, executed a mortgage thereon to the National Gold Bank and Trust Company; that this company thereafter brought suit to foreclose the mortgage, and obtained a decree, which was recorded on the 29th of January, 1875. At the sale made by virtue of this decree, on the 8th of March, 1875, William Winter purchased the premises, and received from the Sheriff a certificate of sale. The purchase-money paid by Winter was $6,000. On the 6tli of September, 1875, Eldridge, as a judgment creditor of J. D. Earwell, redeemed the premises from Winter, paying him the sum required by law, amounting to $6,832. On the 12th of November, 1875, the period of six months from the sale having then elapsed, the Sheriff executed to Eldridge a conveyance of the premises.

It was also found, that on the 5th of November, 1875, (after the expiration of the six months’ period above mentioned) Wright purchased of Wm. II. Earwell, for the sum of $800, all of his (Farwell’s) interest in the land, on the same day received a conveyance therefor, gave notice to the Sheriff of his purchase, and forbade his executing any deed to Eldridge of his grantor’s (W. H. Fanvell’s) interest in the premises.

The sole question presented for decision here is, whether Eldridge acquired by the proceedings above stated a title to the land in controversy independent of any right which Wright received under the conveyance to him by W. H. Farwell, and which would entitle him to a judgment quieting his title against Wright.

It is contended on behalf of the defendant, that the judgment under which Eldridge redeemed was docketed on the 23rd of January, 1875, and that the lien of such judgment was not subsequent to that on which the property was sold, and therefore he (Eldridge) was not entitled to redeem. It is true that the judgment recovered in the foreclosure case was not recorded until the 29th of January, 1875, but it does not appear that this judgment was ever docketed; and, therefore, when the sale took place, there was no lien by this judgment. (Code Civ. Proc. §§ 671, 726 ; Englund v. Lewis, 25 Cal. 337.) But the lien under which the property was sold was that of the mortgage foreclosed, (Code Civ. Proc. § 901; Frink v. Murphy, 21 Cal. 108) which dates from the 26th of March, 1872, the day on which the mortgage was executed. The lien of the judgment under which Eldridge redeemed having come into existence long subsequent to this, he was, in our opinion, a redemptioncr under the statute.

Eldridge effected a redemption from Winter. What did he redeem? The statute affords the only means of ascertaining this. The right to redeem exists only by virtue of the statute, and under its provisions wc must find the measure of the right. (Tuolumne Redemption Company v. Sedgwicks, 15 Cal. 515.) According to the requirements of the statute upon this subject, “ upon a sale of real property, the purchaser is substituted to, and acquires all the right, title, interest, and claim of the judgment debtor thereto.” (Code Civ. Proc. § 700.) In all cases other than a sale where “ the estate is less than a leasehold of two years’ unexpirod term,” the property sold is subject to redemption, and the officer making the sale is required to give to the purchaser a certificate of sale, containing, among other things, a particular description of the property sold, and a statement that it is subject to redemption. (Code Civ. Proc. § 700.) The succeeding section of the Code (701) prescribes that “property sold subject to redemption as provided in the preceding section, or any part sold separately, may be redeemed in the manner hereinafter provided.”

It is a just inference from the statutory provisions above stated, that when Eldridge redeemed from Winter, he redeemed the whole property sold. The sale by the Sheriff embraced the interests of both J. D. and W. H. Farwell, and was not restricted to the interest of J. D. Farwell. Eldridge redeemed the whole property from the sale made by the Sheriff to Winter, regardless of the interests of the judgment debtors. He had to redeem all or none. As the property sold was embraced in one sale, the law afforded no means by which less than the whole could be redeemed. The redemption was an entirety, and so existed, or did not exist at all.

This conclusion is sustained by the further statutory enactments on the subject. In order to redeem from the purchaser, the redemptioner is required to pay him the amount of his purchase, with twelve per cent thereon in addition, etc., etc. (Code Civ. Proc. § 702.) If the property sold bo redeemed by a redemptioner, another redemptioner may, within sixty days after the last redemption, again redeem it from the last redemptioner, on paying the sum paid on the last redemption, with four per cent thereon in addition, etc., etc. The property may be again and as often as a redemptioner is so disposed, redeemed from any previous redemptioner, within sixty days after the last redemption, on paying the sums paid on the last previous redemption, with four per cent thereon in addition, etc., etc. (Code Civ. Proc., § 703.)

It will be seen from these provisions of the statute that not only must the whole property be redeemed, but the payments to be made on redemption always include the whole purchase-money.

As to the conveyance by the Sheriff, it is provided that if a redemption is made, and sixty days have elapsed and no other redemption has been made within that period, and the time for redemption has expired, the last redemptioner or his assignee is entitled to a sheriff’s deed. (Code Civ. Proc. § 703.) The Sheriff must convey the property sold. There is nothing in the statute as regards this conveyance which makes any reference to less than the entire property which the Sheriff lias sold, and for which he has made his certificate of sale to the purchaser.

The statute allows the judgment debtor to redeem at any time within the six months, and it may be that his successor in interest has the same right. If the judgment debtor redeems, “ the effect of the sale is terminated, and lie is restored to his estate.” (Code. Civ. Proc. § 703.) Such is not the effect, as is above seen, when the redemption is made by one of the class styled redemptioners. Under the circumstances above pointed out, one of that class is entitled to a conveyance from the Sheriff.

The provisions of § 707 of the Code of Civil Procedure, as to the rents of the property sold, or the value of its use and occupation, also show that the interest of the purchaser, and of the redemptioner from the time of redemption made, extends to the whole property sold.

It is contended on behalf of the defendant that the right of Eldridge to redeem extends no further than the interest of the tenant in common, which is bound by the lien of the judgment under which he (Eldridge) derives the right to make such redemption ; that under his judgment against J. D. Farwell, he could, by virtue of an execution issued on it, sell only the interest of J. D. Farwell, and that his right of redemption is limited to the interest which he could subject to sale under execution. What is said above shows this to be an entire misconception of the scope of the statute. The provision of the statute invoked to sustain this view is contained in the second subdivision of § 701. This subdivision, in our judgment, defines the class of persons who have a right to exercise the privilege of redemption. It docs not in any way limit or define the extent of the right. Such extent will be found in the other provisions of the statute referred to above.

The contention put forth on behalf of defendant that by reason of the fact that Eldridge, a judgment creditor of J. D. Farwell, a tenant in common with the grantor of defendant, has redeemed the property from the sale to Winter, an equity has resulted to defendant, has nothing to sustain it. If no redemption had been. made, upon the expiration of the period of six months after the sale, the purchaser (Winter) would have been entitled to a conveyance of the property. . By the redemption, Eldridgo was invested with all the rights of Winter. It is said in Bagley v. Ward, 37 Cal. 121, that “the redemption is virtually a transfer of the certificate of sale.” (As to this, see also Abadie v. Lobero, 36 Cal. 390.) The equity is novel which has no existence against Winter, but becomes quick with life when Winter’s rights have been transferred to another. W. II. Farwell, the grantor of Wright, could have redeemed at any time within the six months’ period, either from Winter, the purchaser, or Eldridge, the redemptioner. It may be conceded that Wright, the grantee of W. H. Farwell, had the same right. But when the six months’ period had elapsed, neither W. II. Farwell, nor his grantee, Wright, had any such privilege. As we have seen, the conveyance to Wright was not made until the expiration of the six months, and at that time his grantor had nothing to convey which would invest his grantee with the right to redeem. It cannot be maintained that under such circumstances W. H. Farwell had a right to redeem. To hold that Wright had, would be to accord to him a greater right than his assignor had.

We have examined the cases cited by counsel for defendant. They have no application to the case before us. Kirkham v. Dupont, 14 Cal. 559, is a case of second-mortgagees of the interest of one tenant in common seeking to redeem from a prior mortgage made bv his mortgagor, in which the other tenant in common joined. There had been a foreclosure by suit of the first mortgage against both tenants in common, to which the second mortgagees were not parties, a sale at which the first mortgagees became the purchasers, and had received the sheriff’s deed. The Court held that the second mortgagees could redeem the interest of the tenant in common who had mortgaged to them. This was not a case of statutory redemption. The difference between the redemption right of a mortgagee before decree of foreclosure, and the statutory right to redeem from a judgment, is pointed out in Whitney v. Higgins, 10 Cal. 547, and Montgomery v. Tutt, 11 Cal. 307. The cases cited from New York, Erwin v. Schriver, 19 Johns. 379, and the case from Illinois, Fischer v. Eslamann, 68 Ill. 78, are on statutes with different provisions from the statute of this State, and have no application to the question before us, which is to be determined on the construction of the statute of this State, which gives the right of redemption, defines its extent, and limits, regulates, and controls it in all its length and breadth.

We discover no error in the judgment of the Court below, and it is affirmed.

Morris oh, C. J., McKihstby J., McKee, J., and Boss, J., concurred.