Haskell v. Manlove

Baldwin, J. delivered the opinion of the Court—Cope, J. concurring.

This case was a petition for a mandamus to compel the de[56]fendant, Sheriff of Sacramento County, to execute a deed for certain real estate. The facts are these: The female plaintiff, Eachel, before her marriage with the other plaintiff, D. H. Haskell, owned two lots in Sacramento City. In April, 1855, she sold the lots to one Ormsby, who executed to her and her husband a mortgage, to secure the payment of the price. After-wards, the plaintiff being indebted to one Lynch, transferred the note and mortgage as collateral security. Lynch afterwards brought suit on this note and mortgage, on 29th April, 1858, and obtained judgment against Ormsby for five hundred oighty-one dollars and sixty-six cents, and forty-two dollars and sixty cents costs, and interest, at the rate of two per cent, per month, "running on the principal sum—the decree also directing a sale of the mortgaged premises. On the 21st of May, 1858, the premises were sold by the Sheriff under this decree, and bought in by the plaintiff for one hundred dollars—certificate filed, and money paid—Lynch having been paid the money for which these papers were assigned as collateral security, assigned the judgment to the Attorneys of the plaintiff, who assigned to the plaintiff—a large amount of the money due on this judgment is owing still —more than six months have elapsed since the purchase—and on the 22d November, 1858, the expiration of the period of redemption, the plaintiff demanded of defendant a deed, etc-.

The defendant set up for answer, that on the 10th day of May, 1853, I. & S. Wormser recovered a judgment in the District Court of the Sixth Judicial District, against Ormsby, for five hundred and seventy-three dollars and twenty-five cents, and costs; that there is still due on this judgment, six hundred' and twenty-two dollars and thirty-nine cents; that the judgment is a lien on these lots; that on September 7th, 1858, he was notified by I. & S. Wormser that they claimed the right to redeem these lots from the sale of D. H. Haskell; and that, on the 7th of September, 1858, Wormsers tendered him the sum of one hundred and twenty-five dollars, and a certified copy of the judgment in favor of Wormsers, and the certificate of sale of the lots to them, and an affidavit of the amount due on the judgment, and demanded a certificate of redemption of the property; and on the same day Wormsers paid him the sum of one hundred and twenty-five dollars, for the purpose of redeeming the lots, and have since demanded a deed.