Thе respondent moves to dismiss the appeal upon -the ground “that after the taking of said appeal the appellant, Tiny Freud, administratrix with the will annexed of the estate of Morris Freud, deceased, voluntarily paid to the respondent, and the respondent accepted, the whole sum of money specified in the decree appealed from, thus effecting a satisfaction of said decree.”
The motion is made upon the transcript and an affidavit showing that on August 12, 1899, said administratrix paid to the respondent twelve thousand two hundred and nine dollаrs and sixty-seven cents for the purpose of satisfying the judgment *641 appealed from, and that the money was accepted and the judgment satisfied.
Without stating the facts so fully as might appear to be necessary if the merits of the appeal were now under consideration, thе following will suffice for the purposes of this motion.
Morris Freud died testate in 1882, seised of certain real estate which he had mortgaged to the German Savings and Loan Society. By his will he devised to his wife, Tiny Freud, a life estate in said real estate, with remainder to five children in equal proрortions, and said Tiny Freud is the administratrix with the will annexed of said estate. After the death of Morris Freud the bank foreclosed its mortgage, and on May 31, 1898, the property was sold thereunder, the bank becoming the purchaser. The respondent, having purchased the interest of one of the rеmaindermen, on November 30, 1898, as a successor in interest of the mortgagor, redeemed the property by paying to the bank the full amount of eleven thousand six hundred and nine dollars and forty-four cents, and afterward brought the present action against Tiny Freud, as administratrix and also in her personal capacity, and against each of the other devisees, praying that the amount of said redemption money which each of the defendants should severally pay be ascertained, and that in default of such payment by a day to be fixed by the court eaсh of the defendants so defaulting to be forever barred and foreclosed of all interest in the premises.
The answer alleged that the interest which the plaintiff purchased from said devisee was subject to the payment of the debts, charges, and expenses of administration, and that there are such debts, charges, and expenses remaining unpaid.
The court found the proportion of the redemption money that should be paid by each of the defendants, and decreed that in default of payment within sixty days the interest of the defendant so defaulting should vеst “absolutely and forever, unconditionally, in the plaintiff.”
From said judgment all the defendants appealed, and it is that appeal that respondent seeks to dismiss. The grounds upon which said motion is based have already been stated in the notice of motion and in the affidavit of Mr. North in support of the motion.
*642 In opposition to the motion is an affidavit of Mr. Bosley, one of appellant’s attorneys, stating very fully the circumstances under which said redemption money was paid by the administratrix, from which it appears that Mr. Bosley, Mr. Goodfellow, and Mr. Vandall went to the office of Mr. North, the attorney in fact of respondent, taking with them the money required to effect the redemption, a written tender, and a form of receipt to be executed by Warner Brothers Company, by -its attorney in fact, and its attorneys, entitled in the court and cause, and thе body of which is as follows:
“Received from Mrs. Tiny Freud, administratrix with the will annexed of the estate of Morris Freud, deceased, the sum of twelve thousand two hundred and nine dollars and sixty-seven cents paid by her pursuant to the terms of the decree entered in the above-entitled action and in full sаtisfaction of the amount provided to be paid by her as such administratrix by the terms of said decree.”
Dated August 12, 1899.
The receipt that was given by respondent is as follows:
“San Francisco, August 12, 1899.
“Received from Tiny Freud, as administratrix of the estate of Morris Freud, dec’d, twelve thousand two hundred nine and 67-100 dollars.
“(Signed) WABNEB BBOS. CO., a Corp.,
“Per HABT H. NDBTH,
“Its Attorney in Fact.”
This receipt made no reference to the action or the decree or to any purpose for which the money was paid; but to all requests that the receipt prepared by the administratrix should be signed the reply was, “You have your receipt.” Mr. Tread-well, of counsel for respondent, said, in effect, that they did not propose to sign anything or do anything that would enable> appellant to get any of the money back; that it was their point that the administratrix had no right to effect redemption without an order of court.
The facts stated in Mr. Bosley’s affidavit were not replied to,
It will be observed that in the notice of mоtion to dismiss this appeal there is no statement that the money was received or paid in satisfaction of the decree, but simply that the pay *643 ■ment was voluntary, and the money accepted, “thus effecting a satisfaction of said decree”; and the affidavit of Mr. bTorth is equаlly careful to avoid any statement that it was received in satisfaction of the judgment appealed from, though he concludes his affidavit with the legal conclusion “whereby the said judgment became and is satisfied.”
In an affidavit made by said Tiny Freud in opposition to skid motion it is shown that in August, 1900, she filеd a petition in the superior court for partial distribution of the estate of Morris Freud in which she alleged that the land described in the judgment appealed from in this action was the community property of herself and said Morris Freud; that the corporation, respondent herein, аppeared and filed an opposition to her said petition, in which it was denied that said property was community property, and alleged that in an action commenced by said corporation against said Tiny Freud and all other persons interested in the estate, thе superior court, on June 17, 1899, duly made and entered its decree, whereby it was adjudged, among other things, that the interest of Tiny Freud in said real property was a life estate only, and that she had no other interest therein. Her affidavit then proceeds to state that in the present cаse, in which said judgment was rendered, there was no issue as to whether said real estate was community property, and that she intends to file a supplemental brief and ask that the judgment be reversed or modified in so far as it may be held to determine that she had only a life estate therеin.
The appeal in this case is taken by all the defendants, viz.: Tiny Freud, Bosa Vogelsdorf, Hannah Freud, Emily Elaiser, Tiny Freud, as administratrix with the will annexed of the estate of Morris Freud, deceased, and Emma Freud, as executrix of the last will and testament of Isaac Freud, deceased. The judgment spеcifies the amount to be paid by each of these defendants, and devested the estate of each one who should not pay within sixty days. The appeal is from the whole of the judgment. The alleged satisfaction of the judgment was made by Tiny Freud, as administratrix. It does not appеar that any -other of the appellants consented to the payment. We see no ground upon which the respondent has any right to have the appeal dismissed as to any of the appellants, unless it be as to the administratrix. It is shown that there are debts, charges, *644 and expenses of the estate of Morris Freud unpaid. It was her duty to protect the estate as far as possible. If she failed to pay the amount required by the judgment to be paid by her asadministratrix, and this court should affirm the judgment, the estate would have been lost to the heirs and creditors. We think she was not bound to determine at her peril what the judgment of this court would be upon the questions of law involved. There was no compromise, no concession by respondent, no condition imposed or assurance given that the appeal would not be prosecuted. On thе contrary, respondent expressly refused to sign a receipt acknowledging satisfaction of the judgment; nor has it since offered to give or sign an acknowledgment of satisfaction, nor has any satisfaction of said judgment been entered of record; while the statement of its-сounsel at the time the money was paid, to the effect that nothing would be signed or done that would enable appellants to get their money back, and that the administratrix had no right ■to effect redemption without an order of court, would seem to-imply that respondent did not intend thаt the payment should be the end of the matter. But, however that may be, the repeated refusals of respondent to acknowledge satisfaction of the-judgment estops it from saying, for the purposes of this motion, that the judgment has been satisfied, and that for that reason the appeal should be dismissed. It cannot for one purpose refuse to acknowledge satisfaction of the judgment, and for another purpose insist that it is satisfied.
In
Hayes v. Nourse,
In
Erwin v. Lowry,
In Hayes v. Nourse, supra, the court further said: “The statute giving the right to appeal only requires that the judgment shall be final, that the appeal shall be taken within one year •after it is entered, and, anticipating such a case as that now presented, providеs that if the judgment appealed from is reversed, the ■ appellate court may make or compel restitution. The same rule prevailed before the code, and it was applied whether the judgment was paid before or after writ of error brought. The only difference was in the manner of proceeding to inform the court of the facts on which the right to restitution -depended.”
Freeman, in his work on Judgments, section 480a, says: “One against whom a judgment is entered, if he fails to satisfy it, must expect to see his property seized and sold at a sacrifice, and it is diffiсult to conceive how his payment of the judgment nan give rise to any estoppel against his seeking to avoid it for error. The better view, we think, is, that though the execution has not issued, the payment of a judgment must be regarded as compulsory, and therefore as not releasing errоrs, nor depriving the payor the right to appeal.”
In the ease at bar the court found that the real estate sold under the mortgage to the bank and redeemed by respondent, Warner Brothers Company, is of the value of twenty-five thousand dollars. The amount paid on August 12, 1899, to resрondent, twelve thousand two hundred and nine dollars and sixty-seven cents, was less than one-half the value of the property. The judgment was a strict foreclosure of respondent’s •claim arising out of its redemption from the foreclosure sale, and under the judgment from which this appeаl is taken, unless reversed, or satisfied by payment, the property would become forfeited to respondent. The payment made by administratrix, under these circumstances, was prudent, and might well be regarded as compulsory.
*646
In support of the motion respondent cites severаl California cases, none of which conflict with those above cited.
Morton v. Superior Court,
People v. Burns,
So in
Vermont Marble Co. v. Black,
San Diego School District v. Supervisors,
*647
Ferrea v. Tubbs,
The motion is denied.