Thresher v. Atchison

Harrison, J. By virtue of an order of sale issued upon a judgment entered in the superior court for Butte county for the foreclosure of a mortgage upon certain lands, and their sale in satisfaction of the mortgage debt, the defendant Atchison, who had been appointed by the court a commissioner therefor, sold the lands March 23, 1895, to his codefendant, Green, for the sum of $8,000, and issued to him a certificate therefor. September 22,1895, the plaintiffs herein, who were entitled to redeem the lands from said sale, tendered to the commissioner "for that purpose the sum of $8,474.67. The commissioner refused to receive that amount in redemption thereof, and threatened to execute a conveyance of the lands to the purchaser, unless they should be redeemed from the sale by the payment to him of $8,949.35 before the time for redemption should expire. [74]The plaintiffs thereupon paid to the commissioner the sum demanded by him, under their protest that the amount was illegal and excessive to the extent of $474.68. The present action was brought to recover the last named amount, upon the ground that it was in excess of what the commissioner was authorized to demand. Judgment was rendered in favor of the plaintiffs for the sum of $296.95, from which the defendants appeal.

At the date of the sale it was provided by section 702 of the Code of Civil Procedure that a redemption from the sale might be made within six months by paying to the purchaser “ the amount of his purchase, with two per cent per month thereon in addition up to the time of redemption,” with any taxes or assessment that he might have paid after his purchase. By an amendment of this section passed March 27, 1895 (Stats. 1895, p. 225), and which went into effect sixty days thereafter, it was provided that the redemption might be effected by paying the amount of the purchase, “ with one per cent per month thereon in addition up to the time of redemption,” with whatever taxes and assessments might have been paid by the purchaser; and the question presented upon this appeal is the effect to be given to this amendment. The theory of plaintiffs, as shown by their complaint, is that the provisions of the amended section alone are to be considered, while the defendants contend that the section as it stood at the date of the sale determined the rights of the parties. The court held that the provisions of the original section prevailed until the amendatory section took effect, and that thereafter the amended section alone was to be considered.

It has been frequently held that a law extending the . time within which a redemption may be made from a sale under a judgment will be inoperative upon a sale made prior to the passage of the act; that the purchaser at the sale acquires rights thereby of winch he cannot be divested by subsequent legislation. Cooley, in his treatise on Constitutional Limitations, page 353, says: “A law is void which extends the time for the redemp