People ex rel. Ford v. Irwin

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

This is an application for a mandamus to compel the defendant, as Sheriff of Sierra County, to execute a deed to the relator, of certain real estate described in the petition. On the 26th of April, 1856, Thomas J. Taylor recovered a judgment in the District Court of Yuba County, against Cutler Arnold, for twelve hundred and two dollars and interest, and on the 2d of September, following, a transcript of this judgment was filed in the office of the Recorder of Sierra County. On the 24th of January, 1857, the defendant, under and by virtue of an execution issued upon said judgment, sold the property in question for one hundred dollars; Taylor himself becoming the purchaser, and receiving the usual certificate of sale. On the 23d of March, 1857, Taylor assigned this certificate to the relator, in consideration of seven hundred dollars. On the 8th of April, 1857, A. J. Rigby recovered a judgment in the District Court of Sierra County against Arnold, for two thousand and seventy dollars, and on the 23d day of July, 1857, paid to the defendant, as Sheriff, etc. the sum of eight hundred and fifty dollars, to redeem the property from the sale to Taylor. This sum being tendered to the relator, he refused to accept it, and subsequently demanded a deed, which he failed to obtain. After the expiration of the period for redemption, the defendant executed a deed of the property to Rigby. On the trial of the case, the relator gave in evidence a deed of the property from Arnold and wife to himself, dated February 23d, 1857, and acknowledged and recorded on the 25th of March, 1857. To avoid the effect of this deed the defendant gave in evidence an instrument, dated March 16, 1857, by which the relator agreed to rcconvoy the property to Arnold and wife, upon their paying to him, within one year from that date, the sum of eight thousand six hundred dollars, with interest at two and one-lialf per cent, per month, less the amount which should [434]be received by him as the rents and profits of the premises during that period. It is expressly declared in this instrument, that it shall only be treated as a contract to convey, and not as an acknowledgment that the conveyance from Arnold and wife was intended as a mortgage.

The first question arising from these facts is, whether" Rigby was a redemptioner at the date of his alleged redemption from the sale to Taylor. The right to redeem is given by statute, first, to the judgment debtor, or his successor in interest, and, second, to a creditor having a lien by judgment or mortgage subsequent to that on which the property was sold. (Wood’s Dig. 197, Sec. 230.) It is not denied that Rigby was a judgment creditor, but it is claimed that his judgment never became a lien upon the property, and that the proceedings under it were, therefore, ineffectual for any of the purposes of a redemption. The reasons assigned are, that when the judgment was recovered, the title to the property had passed from the judgment debtor and vested in the relator, and that in the hands of the latter the property was not subject to the lien of the judgment, nor to any proceedings affecting the title, the validity of which depended upon such a lien. It is undoubtedly true that the statutory lien of a judgment upon the real estate of the judgment debtor, can attach only upon property in which such debtor has a vested legal interest. This was admitted arguendo, in the case of McMillan v. Richards, (9 Cal. 365,) and we have no doubt of its correctness. It follows, that if the title to the property passed to and vested in the relator, under the deed from Arnold and wife, nothing remained upon which the lien of the judgment subsequently recovered by Rigby could attach, and the proceedings under it to redeem the property were null and void. It is contended, however, that this deed and the contract to reconvey are parts of the same transaction and must be construed together, and that thus construed they amount merely to a mortgage. If this position be correct, the legal estate did not pass to the relator, but remained in Arnold, and the rights of Rigby as a redemptioner under his judgment cannot be questioned. This branch of the case rests upon the construction of these instruments.