Schumacher v. Langford

KERRIGAN, J.

This action was brought for the purpose of obtaining a writ of mandate, commanding the defendant, as sheriff of the county of Santa Clara, to execute and deliver to plaintiff a deed of conveyance of certain real estate theretofore sold by him under execution. Judgment was entered as prayed, and this appeal is from such judgment and from an order denying defendant’s motion for a new trial.

The facts of the case are that on December 21, 1906, a judgment was duly rendered against Ada B. Moody for a certain sum of money. On July 10, 1907, the judgment being still in full force, a writ of execution was duly, issued thereon, to satisfy which the defendant, as sheriff of said county of Santa Clara, on the eighth day of August, 1907, regularly sold to the plaintiff the property described in the complaint belonging to the judgment debtor, Mrs. Ada B. Moody.

On the seventh day of August, 1908, Mrs. Moody called at the office of Herman Murphy, a loan broker doing business in San Francisco, and informed him that the following day would be the last on which he could redeem such property, and requested him to obtain for her the sum of $2,300 to assist her in effecting a redemption thereof. She already had the sum of $916.54, and she turned it over to Murphy to be used with the $2,300 to make up the sum necessary to make the redemption. Murphy arranged to have Henry S. Bridge, a client of his, advance the $2,300. For this sum a promissory note was executed by Mrs. Moody, secured by an assignment of her interest in the estate of her deceased husband; and assignment of a note and mortgage owned and held by her brother, one Guy Hinton, and a promissory note of her mother to Bridge for the sum of $2,300, secured by a deed of trust covering real estate in San Francisco. “Nothing,” says the statement on appeal, “was said or done at that time or thought of with regard to a deed of the property in question in this suit from Mrs. Moody to Bridge. ’ ’

On the eighth day of August (the following day) Murphy, accompanied by Mrs. Moody, went to the sheriff’s office at

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San Jose, and having made a proper tender of the amount of money necessary to effect a redemption, demanded a sheriff’s deed to the property and requested that it be made to Bridge. The sheriff informed Murphy and Mrs. Moody that in order to obtain such deed to Bridge it would be necessary to have an assignment by the purchaser of the certificate of sale. Being unable to procure such assignment the parties were referred to the sheriff’s attorney, who instructed them that in order to carry out their desire it would be necessary for Mrs. Moody to make a deed of the property to Bridge. This was done. Murphy exhibited the deed to the sheriff, and demanded a certificate of redemption in the name of Bridge, which, upon payment of the amount due, was issued as requested.