Kent & Cahoon v. Laffan

Appeal from the Superior Court of San Francisco.

The plaintiffs held the mortgage of defendant, dated October, 1851, which they foreclosed in the said Court; at the sheriff’s sale of the mortgaged premises, plaintiffs become the purchasers, and the sheriff gave a certificate of sale, in the first place, to the purchasers, and within a few days after, delivered to them an absolute deed for the same premises; which the purchasers subsequently conveyed to one Isaac E. Holms. Henry A. Bechet, the holder of a judgment, subsequent in date to the mortgage, claimed the right of redemption, and for that purpose moved the Court for an order on the sheriff, to deliver to the purchaser a certificate of sale, and to have the absolute deed cancelled. The question was argued June 23rd, 1852. On the 14th July, 1852, the Court denied the motion, and this appeal was taken.

McAllister, for appellant, distinguished between the statute of

New York and that of California; the former treats exclusively of writs of fi. fa. and other executions known to the common law, and does not extend to sales of property by foreclosure, under mortgage. The 229th section of the act “to regulate proceedings in civil cases,” expressly provides, that upon a sale of real property, when the estate is less than a leasehold, &c., the sale shall be absolute. In all other cases the real property shall be subject to redemption, &c. And this is said in the same act that treats of the foreclosure of mortgages.

The mortgage was made subsequent to the redemption act, and is therefore within it; and the case of Brown v. Kenzie, et ah, does not apply.