Knight v. Fair

Burnett, J., delivered the opinion of the Court—Field, J., concurring. Application for mandamus to compel sheriff to make a deed to the purchaser of real estate.

Knight obtained a judgment against Calham and others, for $637 58, with interest at five per cent, per month, and for §349, with interest at ten per cent per annum, and §150 90 costs, on May 29th, 1856; making in all $1,137 48. On the 4th June, 1856, there was paid the sum of §491 10, after deducting sheriff’s costs, $88 90, for collection, leaving the sum of §646 38. July 23, 1856, the sheriff sold the real estate to Knight for §400. On the 23d January, 1857, the successor in interest paid to the sheriff §472, and to the clerk §271 13, making in all the sum of $743 13, for the purpose of redeeming the property. The purchaser refused to accept the same as sufficient, and applied for this writ to compel the sheriff to make him a deed. The writ was denied, and the plaintiff appealed.

[118]The two hundred and thirty-first section of the Code allows the judgment-debtor, or a redemptioner, to redeem, within six months after the sale, by paying the purchaser the amount of his purchase, with eighteen per cent, thereon, in addition, together with any assessments or taxes, and interest on such amount; “ and, if the purchaser be also a creditor, having a lien prior to that of the redemptioner, the amount of such lien, with interest.”

It is certain, from this explicit language, that the purchaser may have a lien upon the property prior to that of the redemptioner. The fact that he is the creditor does not divest his lien. He may be both a creditor and a purchaser, and still have a prior lien to that of the redemptioner. This can only be upon the principle that the legal estate is still in the judgment-debtor, until the delivery of the sheriff’s deed; and, if in the debtor, it is such an estate as may be the subject of a lien, a sale under execution, or of a conveyance by deed from the debtor. In fact, it may be laid down as true, that in all cases where a mere lien exists, the legal estate must be in some other party than the mortgagee. This legal estate, and the consequent right to discharge the lien and save the estate, is of value, and can be sold.

We are compelled to give the statute this construction. If we do not, it has no meaning. This was expressly decided by this Court in the case of Van Dyke v. Herman & Barton, (3 Cal. R., 293.)