Simpson v. Castle

Counsel for appellant relied on the following cases: 8 Johns. 333; 4 Cow. 133; 5 Hill. 228; 2 Hilliard on Mortgages, 108.

Counsel for respondent cited Macovich v. Wemppel, 16 Cal. 105; Page v. Rogers, 31 Cal. 293, to the point that the land was the property of Post until redeemed; and that the judgment, when docketed, became a lien. (Chapin v. Broder, 16 Cal. 422; Hunt v. Dohrs, 39 Cal. 304; Hibbard v. Smith, 50 Cal. 511.)

By the Court, Crockett, J.: One Post, being the owner of certain lands, made a mortgage thereon to the defendant Castle, to secure the payment of a debt due from the former to the latter. The mortgage was foreclosed in the usual form, and at the sale of the mortgaged premises under the decree Castle became the purchaser for a sum less than the amount of the judgment, and received the usual certificate of sale. Thereupon the deficiency was reported by the Sheriff, and a judgment therefor was duly docketed. After[646]ward, before redemption, and before the time for redemption had expired, the mortgagor (Post) conveyed the premises to the plaintiff in the present action, who, as the successor in interest of Post, paid to the Sheriff the sum necessary to effect a redemption, which sum was accepted by the Sheriff with the consent of Castle, to whom the redemption money was then paid, and thereupon the Sheriff delivered to the plaintiff a certificate of redemption in due form. After the redemption was thus completed, Castle sued out an execution oh the judgment for the deficiency, and the Sheriff, under the direction of Castle, has levied the execution on the same premises, and is about to sell them under the execution. The action is to enjoin the sale on the ground that the sale, and the Sheriff’s deed in pursuance of itj will cast a cloud on the plaintiff’s title. To the complaint stating these facts the defendants demurred on the ground that it does not state facts sufficient to constitute a cause of action; and the demurrer having been sustained, a final judgment was entered for the defendants, from which the plaintiff appeals.

The Practice Act of 1851 (sec. 231) provided that the judgment-debtor or a redemptioner might redeem within six months, on paying to the purchaser the amount of his purchase with eighteen per cent, thereon, together with any assessments or taxes which may have been paid by the purchaser, with interest, “ and if the purchaser be also a creditor, having a lien prior to that of the redemptioner, the amount of such lien with interest.”