Campbell v. Oaks

Morrison, C. J. — This suit was brought to compel the defendant, who was the sheriff of the county of San Luis Obispo, in this state, to execute to him, plaintiff, a certificate of redemption to certain lands sold under execution. The sheriff refused to execute such certificate, for the reason that there was a prior lien on said lands, held by a certain partnership of which the purchaser at the execution sale was a member, and the court sustained him in this contention. The following are the findings in the case:—

“1. That on the third day of January, 1881, the plaintiff was the owner in fee of the land and premises described in the plaintiff’s complaint herein.

“ 2. That pursuant to an execution, duly and regularly issued out of the court of G. W. Barnes, Esq., a justice of the peace in and for the township of San Luis Obispo, county of San Luis Obispo, state of California, upon a judgment duly made and given therein in a certain action wherein E. Lasar was plaintiff, and the plaintiff [223]herein was defendant, the defendant, W. J. Oaks, he being then duly, elected, acting, and qualified sheriff of said county, duly and in accordance with law, on the third day of January, 1881; sold said land and premises to one Ernest Cerf, for the sum of $3.15, and thereupon duly issued and filed for record, as required by law, a certificate of sale therefor.

“3. That on the eleventh day of January, 1881, and within six months after the sale aforesaid, this plaintiff deposited with the defendant, who was then and is now the sheriff as aforesaid, the sum of $3.22, in the same kind of money or currency in which and for which the sale was made, that sum being the amount paid by said Cerf for said real property, with interest thereon at the rate of two per cent per month from the date of the purchase by said Cerf as aforesaid, to the date of such deposit, together with the amount of all assessments and taxes which said Cerf had paid thereon' after the purchase by him as aforesaid, and interest on the same, and demanded from the defendant that he execute and deliver to the plaintiff a certificate of redemption of said premises, which he refused and neglected, and still neglects and refuses, to do, by direction of said E. Cerf, the purchaser at said sale,

“4. That the plaintiff has not alienated or conveyed to any one his interest in or to the said land or premises, and at the time of the commencement of this action was the owner of the equity of redemption thereof.