66 P. 313 | Cal. | 1901
In 1888 the defendant, being indebted to the plaintiff, executed to him a mortgage upon certain real estate to secure payment. In 1892 plaintiff brought an action to foreclose said mortgage, and on March 3, 1898, obtained a decree of foreclosure, under which the commissioner sold the mortgaged premises to the plaintiff on April 2, 1898, and no redemption having been effected, the commissioner executed a deed to the plaintiff therefor on October 21, 1898. Afterwards, upon plaintiff's motion, the court entered an order granting the plaintiff a writ of assistance to obtain possession of the premises sold, and from that order defendant appeals.
At the time the mortgage was executed, the statute gave the judgment debtor six months within which to redeem from a sale of real estate. By an act approved February 26, 1897 (Code Civ. Proc., sec. 702), the time within which the debtor might redeem was extended to twelve months; *345 and the only question is, Which statute governs? The court below rightly held that the statute in force at the time the mortgage was executed fixed the time within which the right of redemption must be exercised.
At the time this appeal was taken, the question here involved had not been expressly adjudicated in this state; but in the case of Haynes v. Treadway,
Appellant, however, referring to the case of Barnitz v.Beverly,
It is well settled in this state that such a transaction constitutes a mortgage; and besides, it has been directly adjudicated between these parties that the so-called deed was not a conveyance, but a mortgage. (See Malone v. Roy,
The order granting the writ of assistance should be affirmed.
Chipman, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the order granting the writ of assistance is affirmed.
McFarland, J., Temple, J., Henshaw, J. *346