Myeick, J., dissenting: This is an action to quiet title. J. D. Farwell and W. H. Farwell were the owners, as tenants in common, of the premises described in the complaint. They mortgaged the premises to the N. Gr. B. and T. Company to secure the payment of $7,000. Judgment of foreclosure of the mortgage and sale of the premises was made by the proper court. At the sale by the Sheriff, William Winter became the purchaser at $6,000, and received a certificate of sale from the Sheriff. September 6th, 1875, plaintiff gave notice to the Sheriff that he was a judgment creditor of J. D. Farwell; that he had a judgment lien on the property, and intended to redeem the land from the sale, and deposited $6,832 with the Sheriff, which was accepted by Winter. November 5th, 1875, W. H. Farwell executed to defendant a deed, in consideration of $800, conveying all his right, title, and interest in the premises. Defendant gave notice to the Sheriff of his purchase, and forbade the Sheriff from executing a deed to plaintiff of W. H. Farwell’s interest in said land. After the receipt of the notice, the Sheriff, November 12th, 1875, executed to plaintiff a deed purporting to convey to plaintiff the premises, embracing the title and interest of J. D. Farwell and W. H. Farwell.
Plaintiff then commenced this action to quiet his title to the premises. Defendant answered, alleging that he was the owner of an undivided one-half of said property as a tenant in common. He also set forth the facts above stated, and asked that his interest in the premises be determined. Plaintiff demurred to that part of the answer. The Court sustained the demurrer. The cause was tried, and judgment rendered for the plaintiff.
From the foregoing statement, it appears that property, [539]owned by J. D. and W. H. Farwell as tenants in common, a vas sold at sheriff’s sale to satisfy their mortgage, Winter being the purchaser; that plaintiff, being a judgment creditor of J. D. Parnell,.redeemed the property from the sale, and received the sheriff’s deed as redemptioner; and noAv claims to oavh the entire property by virtue of that redemption and deed; that defendant is the successor in interest of W. PI. Farwell, subject to the mortgage and the sale thereon, and claims to oavii the undivided one-half of the premises, subject to AvhatCA'er rights may have accrued under the foreclosure and sale. If the interest theretofore owned by W. II. Farwell, purchased by Winter at the sale, passed to plaintiff upon the redemption, defendant has no interest in the property, and plaintiff was entitled to a decree. If, however, plaintiff, notwithstanding the sale to Winter, acquired by his redemption only the interest or title of J. D. FarAvcll, and an equitable lien on the other half as security for one-half the amount paid on the redemption, defendant has some interest in the property.
Upon a sale of real property, the purchaser is substituted to, and acquires all the right, title, interest, and claim, of the judgment debtor thereto. (Code Civ. Proc. § 700.) Winter, therefore, Avas substituted to, and acquired all the right, title, interest, and claim, of J. D. Farwell and W. PI. Farwell, in and to the premises. Property sold subject to redemption may be redeemed by the following persons or their successors in interest: First, the judgment debtor, or his successor in interest in the Avhole or any part of the property. Second, a creditor having a lien by judgment or mortgage on the property sold, or on some share or part thereof, subsequent to that on Avhich the property Avas sold. (Code Civ. Proc. § 701.) The persons mentioned in the second clause are termed redemptioners.
The tAvo Farwells, therefore, or the' successor in interest of the two, could have redeemed. The statute is silent- as to any direct provision that one of two or more judgment debtors, or the successor in interest of one of two or more debtors, may redeem, but all the cases that have come under observation take it for granted that such action can be had. The Avords “ or his successor in interest in the Avhole or any part of the property,” Avould seem to imply that the successor must be a successor as [540]to some particular parcel rather than as to an undivided interest ; yet it has been held, under similar words, that any part oj the property will include an undivided interest. In the second subdivision above referred to, the words “or'on some share” arc used in addition to the words “ or part thereof,” which clearly authorize the creditor of one tenant in common to redeem.
The plaintiff, therefore, being a judgment creditor of J. D. Farwell, had a right to redeem from the whole sale. Having exercised that right, the next question is, for whose benefit did he redeem ? If a debtor redeem, the effect of the sale is terminated. Did plaintiff’s redemption terminate the sale as to the interest of W. H. Farwell, or was the effect of the redemption to transfer to plaintiff all the right, title, and interest which Winter had acquired by the sale ? The statute provides that the last redemptioner shall be entitled to the sheriff’s deed. If J. D. Farwell had redeemed, the effect of the sale would have been terminated, but as he would have been compelled to pay off the whole debt, he would have had a lien upon W. II. Harwell's share as security for one-half the amount paid.
The cases bearing upon the point in controversy are limited in number.
In Erwin v. Schriver, 19 John. 380, Chief Justice Spencer, delivering the opinion of the Court, said: “We are decidedly of opinion that Erwin (a judgment creditor of one of the tenants in common) has no right to a deed for all the lands thus purchased. His lien never extended to the whole, nor any further than to the individual right of the tenant in common, against whom he had a judg’ment. It never could have been the intention of the Legislature to give to a creditor a right of redemption to any other lands than such as were subject to the lien of the judgment creditor ivho offered to redeem. Beyond such lands he has no pretense to step into the place of the purchaser. The right to redeem can be coextensive only with the lien.” The case ivcnt off, however, on the point that Erwin could not redeem a distinct parcel of the land sold, under the then existing statute in New York.
In The People v. Haskins, 7 Wend. 463, it was held, that a creditor whose judgment was a lien on a specific portion, the judgment having been rendered under a former statute not [541]allowing such redemption, could redeem under the Revised Statutes in force at the time of redemption, which allowed such redemption; but this case was overruled in the Court of Errors. (Huntington v. Forkson, 6 Hill, 149.)
Fischer v. Eslamann, 68 Ill. 78. Where the land of A. and B., owned by them as tenants in common, is sold upon foreclosure of a mortgage given by them, and is redeemed by a judgment creditor of A., and a deed made to the creditor, the latter will acquire no title to the interest of B.; but it seems that as such creditor succeeds to the portion of A., and was compelled to advance money to remove the prior incumbrance as to both A. and B., he will be entitled in equity to compel B., and those succeeding to his title, to contribute toward the cost of the redemption. Where one tenant in common removes an incumbrance from the common estate, the other tenants must contribute to the extent of their respective interests; and to secure such contribution a Court of Equity will enforce upon such interests an equitable lien.
The statute of Illinois, referring to the deed to be executed by the Sheriff, whether purchaser or redemptioner, provides that “ such deed shall convey to the grantee therein named all the title, estate, and interest of the person against whom the execution was issued, of every nature and kind, in and to the premises thereby conveyed.” It is provided that redemption may be made by the defendant within twelve months, and thereafter by a judgment creditor, and, the creditor having redeemed, “ shall be considered as having bid at such sale the amount of the redemption money so paid by him,” and the officer shall “ execute a deed of the premises to him.” This last provision, that the creditor “ shall be considered as having bid,” etc., is not in the statute of California.
Freeman in his work on Cotenancy, § 371, says: “A judgment creditor of one tenant in common may redeem the interest of such cotenant, but he must pay the entire sum Avhich would be necessary to effect a redemption of the Avhole property; while by such redemption he can acquire nothing beyond the moiety of his judgment debtor.” This is repeated in Freeman on Executions, § 321, and is stated on the authority of Neilson v. Neilson, 5 Barb. 565, and Quinn v. Kenney, 47 Cal. 147. [542]Quinn v. Kenney does not decide the principle ascribed to it, but in Neilson v. Neilson the principle is fully given, though not necessary to the case. This was an action of ejectment. H. Neilson, Post, Post, and Badgley were the owners of premises as tenants in common. For their joint debt the property was struck off at sheriff’s sale to Badgley. Plaintiff G. W. Neilson, judgment creditor of H. Neilson, redeemed the premises from the sale. The Court say that plaintiff redeemed as a creditor of Henry Neilson alone. He could, therefore, acquire no greater estate than that which 'belonged to H. Neilson. If that was an undivided share,' the plaintiff acquired it. The deed to the plaintiff does not affect the estate which either Badgley, Post, or Post had in the premises before the sale. Such estate, if it has not been redeemed, is still in Badgley. But, this action being against H. Neilson alone, he cannot complain; it will be time enough to adjust the rights of Badgley, Post, and Post, when they come before the Court.
There is no provision, in so many words, in the statute of this State for the redemption by the successor in interest of a judgment debtor from the redemption by a judgment creditor. Sec. 708 of the Code of Civil Procedure authorizes a redemptionerto redeem after redemption by a first redemptioner, and also authorizes the judgment debtor to redeem, but does not in terms confer the right upon a grantee of the debtor.
If the debtor redeem, the effect of the sale is terminated. If the redemption is by a redemptioner, and no later redemption be made, the redemptioner is entitled to a deed. Sec. 700 of the Code of Civil Procedure provides that upon a sale of real property, the purchaser is substituted to and acquires all the right, title, interest, and claim of the judgment debtor thereto.
At first view it would seem, in the case at bar, that when plaintiff, Eldridge, redeemed from the sale to Winter, he was subrogated to and thence possessed all the rights of Winter, and that the sheriff’s deed conveyed to plaintiff the entire title of J. D. and W. H. Farwell. But, taking into consideration that plaintiff’s right to redeem at all was based upon a judgment against J. D. Farwell alone, that there was nothing in common existing between plaintiff and W. H. Farwell, it may well be urged that the views expressed by the courts in the cases above [543]cited are correct, and that plaintiff was subrogated to the rights of J. D. Farwell only; that if he, J. D. Farwell,had redeemed, he would have had his own title again redeemed, (i. e., purchased back) and would have had an equitable lien upon the share of his joint owner for the proper amount thus paid to relieve that share; and that plaintiff, by redeeming, acquired the same position, was subrogated to the rights of his judgment debtor, and thus became the owner of the legal title formerly held by J. D. Farwell, and to an equitable lien upon the title formerly held by W. II. Farwell as security.
From an examination of the statute and of the cases above cited, I am of opinion that the view last above expressed is correct. The other view would compel defendant Wright, in redeeming, (if he had any right at all to redeem) to have paid not only the judgment against both the Farwells on the foreclosure, but the plaintiff’s judgment aginstJ. D. Farwell also, in order to relieve his interest as successor of W. H. Farwell from the foreclosure. I do not think that the Legislature intended that result.
Defendant should, therefore, have had an opportunity to interpose the defense set up in his answer, and prove, if he could, his right to relief. This being a proceeding in equity, the Court below has full authority to hear and determine all the rights of the parties. Defendant should have a reasonable time, to be fixed by the CouA below, within which to pay to plaintiff one-half of the amount paid for the redemption from the sale on foreclosure, with interest; and in case of payment, be adjudged the owner of so much of said premises as was owned by W. H. Farwell: if he omit to make such payment, be adjudged to have waived his rights, and plaintiff adjudged to be the owner of the premises, free of any claim by defendant, and his title thereto quieted.
In my opinion the judgment of the Court below should be reversed, and the cause remanded to the Superior Court of the City and County of San Francisco, with instructions to overrule the demurrer of plaintiff to the defense set up and pleaded in the fourth paragraph of the defendant’s answer, and that a trial be had and judgment rendered in accordance Avith the views herein expressed.