Baber v. McLellan

By the Court, Shaftee, J.: On the 30th of June, 1858, one Conway recovered judgment in foreclosure against Fountain for the sum of one thousand three hundred and eleven dollars and ten cents and costs. The sale of the real estate covered by the mortgage and decree took place on the 24th of July, 1858, and Conway became [137]purchaser at four hundred and fifty dollars, and received a Sheriff’s certificate. On the 15th of November, 1858, while Fountain’s right to redeem was yet on. foot, he and Conway and one Weston entered into a parol agreement to the effect that if Weston would give to Conway his several promissory note for one thousand dollars, and the joint note of Fountain and himself for two hundred dollars, both payable at a future day, Conway would assign the certificate of sale to Weston and the judgment also ; and Weston agreed that he would hold the certificate and judgment, when so assigned, as security for the payment of both notes by Fountain; and that in „ the event Fountain should pay them, he, Weston, would cancel the certificate and discharge the judgment. Thereupon Conway assigned the certificate and judgment to Weston, who executed to Conway his note for one thousand dollars and a note for two hundred dollars—signed by Fountain and himself—all as contemplated in the agreement. It is further found that the notes were paid by Weston on the 5th of July, 1859, Fountain furnishing the money. On the 11th of January, I860, Weston, however, applied for and received a Sheriff’s deed, and on the 18th of March, 1863, Fountain, who had never parted with the possession, sold and conveyed the property and delivered the possession thereof to the intervener. On the 18th of July, 1864, Weston conveyed to the plaintiff, who took, with notice of all the facts.

The certificate was not a title, but a lien, and the lien would, on general principles, be satisfied by payment of the sum for which it stood as security. (People v. Mayhew, 26 Cal. 660.) If the contract between Conway, Weston and Fountain had never been made, and Fountain had paid to Conway not only the amount of his bid and interest, but the balance due on the judgment, also, before the latter had taken a deed from the Sheriff, the effect of the sale would have been spent; and if Conway had thereafter applied for and received such deed, it would have been a fraud on the rights of Fountain. As assignee of the certificate, Weston held it as security [138]