Gerry v. Northrup

HANSON, J. pro tem.

— The only question presented is whether the trial court, in the exercise of its equitable jurisdiction, erred in its refusal to permit the title owner of a realty to redeem, something over a year after the statutory right of redemption had expired, the property sold on execution sale to a judgment creditor.

[450]

Appellant first contends that the court exercised its equitable jurisdiction erroneously, because the judgment creditor in bidding at sale of the property was aware of the fact that two liens thereon (one a mortgage, the other a trust deed) were invalid, whereas appellant lacked such knowledge and as a consequence failed to redeem the property within a year after its sale. In short, appellant’s contention is that she would have redeemed the property had she known what the judgment creditor knew, but for want of that knowledge she did not redeem because the two liens thereon, subsequently determined by the courts to be invalid, taken together with the valid lien exceeded the value of the property. This mistake on appellant’s part is not attributed to any false representations by or fraud on the part of respondent, but merely as a fact which should have required the court to rule in appellant’s favor. We fail to see the logic of appellant’s argument.

Another contention of appellant is that when a judgment creditor levies on real estate and causes a sale thereof and becomes the purchaser he takes title subject to all prior liens of record and may not challenge their validity.

The record in this case discloses that this is one of a series of three cases which have reached this court

(Cf. Beadle

v.

Northrup,

90 Cal.App.2d 510 [203 P.2d 552];

Northrup

v.

Security Tille Ins. & Guar. Co.,

90 Cal.App.2d 518 [203 P.2d 557]) involving the rights of these and other parties to a five-unit apartment house located in Whittier.

Sometime prior to June 24, 1939, John Wight and his then wife, Susan acquired the property mentioned subject to a first trust deed placed on the property in 1929 by its then owner. On June 24, 1939, the Wights executed a second trust deed to the property to secure a note of $3,500 in which the beneficiary and payee of the note was the wife of one Lincoln A. Freeman. After it was duly recorded Mrs. Freeman transferred her interest in the note and trust deed to one Pepperdine as collateral security to a note held by Pepperdine executed by Mr. Wight and her husband Mr. Freeman. These two men at that time and subsequently thereto were jointly engaged in dealing in oil royalties and oil leases in the state of Montana.