21 Cal. 108 | Cal. | 1862
Field, C. J. and Cope, J. concurring.
This is an application for a mandamus to compel the defendant to execute a conveyance of certain property sold by him as Sheriff, etc. The application is contested upon the ground that the property has been redeemed, and the question is, whether the persons claiming to have redeemed it are redemptioners within the meaning of the statute ? The sale was made under a judgment of foreclosure, and the persons redeeming are assignees of one Kealy, who was a junior mortgage creditor, and a party to the foreclosure suit. The decree of foreclosure ascertained the amount due to Kealy on his mortgage, and directed the proceeds of the sale, after paying the plaintiff’s demand, to be applied to the demand of Kealy, and a small sum was so applied, leaving, however, a large portion of Kealy’s demand unsatisfied.
The embarrassment in this case is occasioned by a decision of this Court and subsequent statutory regulations applying the right of redemption from ordinary judgment sales to sales under a decree for the foreclosure of a mortgage. Aside from statutory regulations, a sale under a judgment gave the purchaser an indefeasible title as against any subsequent incumbrancers. By statute, a certain time was allowed to such incumbrancers to redeem from such a sale. But by a sale under a decree of foreclosure, the rights of no persons were affected who were not made parties to the action; but the rights of all who were so made parties were ascertained and provided for, and the subsequent incumbrancers were after such sale barred and foreclosed of all equity of redemption. As under our system, as now regulated, a right of redemption is given to subsequent incumbrancers from sales on foreclosure as well as on ordinary judgments, it would render the system more consistent if the same effect should be attributed to a sale under a decree of foreclosure as under an ordinary judgment; that is, that it should give a good title against all subsequent incumbrancers, although not made parties, who did not redeem under the statute. But it has been
The order refusing a mandamus is affirmed.