Bangham v. Michael

VICTOR E. SHAW, J.,

pro tem.

This action grew out of the following facts: As commissioner appointed by the court therefor, R. E. Bangham, plaintiff herein, sold certain real estate as directed by the decree made in a suit brought by M. Michael against one J. Noble Jones, to foreclose a mortgage thereon. At this sale, made June 16, 1915, Michael, mortgagee, became the purchaser of the property. As holder of a junior lien thereon, the American National Bank was made a defendant in the foreclosure suit, and hence was a redemptioner as defined in section 701 of the Code of Civil Procedure. Early in the forenoon on the last day for redemption,'to wit, June 16, 1916, an agent of Michael called upon the commissioner and demanded that he execute a deed conveying the property to Michael as the purchaser thereof, with which demand the commissioner complied. Thereafter, on the same day, and before the expiration of the time within which said bank was entitled to redeem the property, it, as such redemptioner, tendered the full sum of money required for redemption, which the commissioner received and gave a receipt therefor, but, upon the ground that he had theretofore executed and delivered a deed to Michael, refused to execute a deed to the bank as such redemptioner. Michael claiming to have purchased the property, and the bank likewise claiming that it was entitled to a deed as redemptioner, the money was left in the hands of the commissioner, who, depositing the money in court, brought this action as provided in section 386 of the Code of Civil Procedure, praying that Michael and the bank be required to litigate their respective rights growing out of his acts.

The court found that by reason of the bank’s failure to comply with section 705 of the Code of Civil Procedure, its acts were ineffectual to constitute it a redemptioner of the property sold, and adjudged that the money so paid to the commissioner be delivered to the bank by the depositary thereof.

From this judgment denying appellant’s status as a redemptioner of the property, the bank has appealed upon the judgment-roll.

[392]

Appellant, being the holder of a junior lien upon the mortgaged property, is, by subdivision 2, section 701, of the Code of Civil Procedure, declared to be a redemptioner, and it was entitled to redeem the property on the day it tendered the full sum of money required therefor, upon complying with the provisions of section 705 of the Code of Civil Procedure, which provide: