117 Cal. 73 | Cal. | 1897
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.
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
Section 700 of the Code of Civil Procedure declares that: “ Upon a sale of real property, the purchaser is substituted to, and acquires, all the right, title, interest, and claim of the judgment debtor thereto,” subject to redemption, as provided in the succeeding sections. Section 701 provides that property sold subject to redemption may be redeemed “ in the manner hereinafter provided.” At the time of the sale in question it was provided by section 702 that, in order to effect a redemption, the purchaser should be paid the amount
The judgment is reversed, with directions to the superior court to sustain the demurrer to the complaint.
Garoutte, J., and Van Fleet, J., concurred.