White v. Costigan

California Supreme Court Feb 23, 1901 No. S. F. No. 1663Published

Before: Smith

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Holding. A redemption by an unqualified party, while legally void as a statutory redemption, operates in equity as an assignment of the purchaser's interest, entitling the redemptioner to reimbursement from the legal owner.

Issues

Whether a redemption by a party without a lien is legally valid under the Code of Civil Procedure.
Whether an invalid statutory redemption can be treated as an equitable assignment of the purchaser's interest.
Whether a legal owner is entitled to quiet title against an unqualified redemptioner without compensating the redemptioner for the amount paid.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The defendant must therefore be regarded as occupying the position of equitable assignee of Linforth’s interest, and is entitled to have his equitable right perfected.”

“The plaintiff is therefore entitled to have her title quieted, but only on the condition of paying to the defendant the amount paid by him for redemption.”

Synopsis

Receiver’s Sale.—Though a Receiver’s Sale of Land had Been Held to he Unauthorized on appeal in another suit, the facts affecting the validity of the sale not appearing from the record in the case at bar, and it having been expressly found in the trial court that the sale was properly made, it would be assumed, for the purposes of the case, that the sale was valid.

Mortgage—Deficiency Judgment,—Where, on Foreclosure of a Mortgage, a deficiency judgment was entered in favor of a junior mortgagee, but prior to Ms judgment a portion of the mortgaged lands not included in his mortgage had been conveyed by receiver’s deed, he was not entitled to redeem such lands, under Code of Civil Procedure, section 701, giving a right of redemption to creditors having a lien.

Mortgage—-Redemption.—Where a Purchaser at Mortgage Sale made a quitclaim deed of the land to the owner, such deed operated as a redemption, and perfected the owner’s title.

Mortgage—Redemption.—By Code of Civil Procedure, section 703, a redemption- from a mortgagee is followed by a sheriff’s deed, and section 705 requires a redemptioner to serve, with his notice of redemption to the sheriff, a eo-py of any assignment necessary to establish his claim. Held, that where, after mortgage foreclosure, the purchaser on mortgage sale gave a -d-eedi of the premises to the owner, and prior thereto, and with the knowledge of the owner, one who was unauthorized to redeem attempted to do so, and paid the redemption money to the sheriff, under section 703 the redemption was virtually an assignment of the purchaser’s interest, though the sheriff was not authorized to make the deed under section 705, and hence should be regarded as the assignee of the purchaser, and the owner entitled to have her title quieted only on condition of paying the redemption money to the redemptioner.

Mortgage—Redemption.—Where the Purchaser at Mortgage Sale gave a deed of the premises to the owner, and prior thereto one not entitled to redeem had paid the redemption money to the sheriff, the redemptioner’s right to he regarded as the assignee of the purchaser’s- interest, being purely one in equity, did not extend to the forfeiture of the owner’s title for nonredemption, she not being affected by the transaction between the purchaser and the redemptioner, and the deed from the purchaser being, in effect, a redemption.

Mortgage—Redemption.—Where One Who was not Authorized to redeem from a mortgage sale paid the redemption money to the sheriff, sueh redeimptioner had a right to have his equitable title perfected by a conveyance from the owner, to whom the purchaser thereafter conveyed the land.

Mortgage—Redemption.—Where One Who was not Authorized to redeem from a mortgage sale paid the redemption money to the sheriff, his right to be repaid his money, or to have a conveyance from the owner of the lands, being an equitable one merely, he should be allowed legal interest only on the amount paid by him from the date of payment.

SMITH, C. The suit was brought to quiet title to the lands described in the complaint. Judgment was rendered for the defendant. The appeal is from the judgment, and on the judgment-roll. Both parties deraign title from one George E. White, plaintiff’s divorced husband. White had mortgaged the lands in controversy and other lands to one Fairbanks, and afterward some of the same lands, but not the lands in controversy, to the defendant Costigan. Suit was commenced by Fairbanks, January 15, 1895, for foreclosure of his mortgages, to which Costigan was made defendant as junior mortgagee. Pending this suit the mortgages of Fairbanks were assigned to the plaintiff herein, and by her to one Linforth, who was substituted as plaintiff. Judgment for foreclosure was entered—date not given—and on March 6, 1897, the lands included in the Fairbanks mortgage were sold by the sheriff, and on the return of the sale, March 25, 1897, a deficiency judgment for $3,937 was docketed in favor of Costigan. At the sale Linforth became the purchaser of the lands in controversy for the sum of $500. Costigan redeemed from the sale, within the time allowed by law for redemption, paying the redemption money to the sheriff, and receiving his [643]certificate, and- afterward his deed for the land sold. The redemption money was paid to, and accepted by, Linforth. The redemption was regular in all respects except as to Costigan’s right to redeem. On the day after redemption, September 8, 1897, Linforth made a quitclaim deed of the land to the plaintiff, who paid no consideration, and took the deed with notice of the redemption and of the acceptance of the money by Lin-forth. The plaintiff deraigns title under the deed last referred to, and also under receiver’s deed—date not given, but recorded November 21, 1896—made in pursuance of a sale under an order of the superior court of San Francisco of date April 12, 1895, and an order of confirmation of date May 5, 1896, in a divorce suit therein pending between herself and her husband. The validity of this sale was involved in the case of White v. White (decided by the court in bank, December 6, 1900), 130 Cal. 597, 80 Am. St. Rep. 150, 62 Pac. 1062; and it was there held, on the facts appearing in that case, that the court was without jurisdiction to order the sale, and the sale and deed made in pursuance thereof consequently void. But in this case the facts affecting the validity of the order of sale do not appear, and it is expressly found that the order of sale, and the order confirming the sale, were “duly made and entered” by the court, and that thereafter a deed was executed to the plaintiff by the receiver “conveying to (her) all the right, title, and interest of the said George B. White in and to the lands . . . . sold, .... including the premises described in the complaint.” Hence there is nothing in the record here to show want of jurisdiction in the court; and the maxim, “De non apparentibus, et non existentibus, eadem est ratio, ’ ’ must be applied. It must therefore be assumed, in this case, that the sale was valid.

White v. Costigan

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