Bonney v. Tilley

CHIPMAN, C. This is an appeal by plaintiffs from an order in the above-entitled action denying plaintiffs’ motion to set aside certain certificates of sales and deeds executed to defendant in certain other actions, on the ground that the judgments therein have been modified by this court.

This case was here on a former appeal and is reported in Bonney v. Tilley, 109 Cal. 346. The facts out of which the controversy originally arose are somewhat lengthy and not a little complicated. They will be found stated in that case and in the case entitled Tilley v. Bonney, Sacramento No. 433, supra, opinion in which was this day filed. To recapitulate briefly, this case of Bonney v. Tilley was an action to have the lien of certain two judgments obtained by Bonney against the Midnight Gold and Silver Mining Company declared superior to the lien of certain two judgments of Tilley against the same company, to wit, Tilley v. Midnight Gold and Silver Mining Company and Gray et al. v. Midnight Gold and Silver Mining Company. One of Tilley’s judgments, to wit, the Gray judgment, was held to be a prior lien to the extent of seven hundred and seventy-five dollars on a certain parcel of the company’s mining property, and, as to the other judgments of both Bonney and Tilley, they were of equal priority. On the first appeal of this case the judgment of the lower court was affirmed as to Tilley’s prior [128]lien, in the Gray judgment, for seven hundred and seventy-five dollars, and the court reduced the lien of his judgment in the other ease to one thousand dollars and directed the judgment in Bonney v. Tilley to be modified accordingly. The judgment was entered as modified November 30, 1895. Tilley held a sheriff’s deed under an order of sale in the Gray judgment, executed about April 19, 1894, and before this modified judgment was entered, and he also had a deed delivered to him by the sheriff September 24, 1896, on his other judgment.

On February 26, 1897, plaintiffs gave notice of the motion in this present case to set aside Tilley’s judgments, and certificates of sale and deeds in the two other cases above referred to, to wit, Gray v. The Corporation and Tilley v. The Corporation, the ground of the motion being the modification of the judgment in Bonney v. Tilley. The lower court denied the motion, hence this appeal.

Appellants cite numerous eases to the point that the lower court may on motion set aside sales under the original judgment after it has been modified by this court. The cases referred to are instances where the restitution sought was of some right accruing to the appealing party in the action in which the motion is made. In the present case the motion is to set aside certificates of sale and deeds thereunder issuing out of and pursuant to judgments in two other separate and distinct actions, to wit, Gray et al. v. The Corporation and Tilley v. The Corporation. The judgments in these cases were never appealed from. In the action of Bonney v. Tilley it was not sought to set aside the sales ordered under the Tilley judgments; the object of that action was to have Bonney’s judgments declared to be superior as liens on the corporation property. It seems to us that plaintiffs could not, by motion, in this ease, have greater relief than they asked for in their complaint in the action. But aside from this objection plaintiff did not move in the matter until fifteen months after the modified judgment was entered; plaintiffs did not offer within the statutory period, nor in compliance with the statute at any time, to redeem from the sale under the Gray judgment, which was declared to be prior in right for seven hundred and seventy-five dollars to all-other liens. There is not only no equity in plaintiffs’ motion, but positive inequity in this—that