Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Granted 14 Cal. 54 at 59.
Appeal from the Sixth District.
COUNSEL
Mandamus was denied, and plaintiffs appealed.
See opinion for facts.
The Wormsers did not make a valid redemption from the sale under Lynch's order of sale, because they failed to serve with their notice a copy of the docket of their judgment. A copy of the judgment is not sufficient. His right to redeem depended on his having a lien, and this depended on the docketing of the judgment. (Prac. Act, Secs. 204, 205, 234; Waller v. Harris, 20 Wend. 561; Rollins v. Forbes & Wife , 10 Cal. 299; Rowe v. Table Mountain Water Co. Id. 441; People v. Beebe, 1 Barb. 388.) The right to redeem is forfeited by failure to comply with the statute. (Collier v. Sheriff of Broome, 19 Wend. 87.)
On reargument, counsel took the following positions:
1. Under the redemption statute a purchaser has no title, but simply a lien, until the time for redemption expires, and he gets a deed. (Knight v. Fair , 9 Cal. 117; 1 Cow. 501; 7 Id. 540.)
The title beingin Ormsby, the judgment debtor, he had, at any time, within the six months, a legal right to convey to other parties; and if he had conveyed, his grantees, and not the Wormsers, would have been his successors in interest. (Vandyke v. Hermance , 3 Cal. 295.)
The Lynch judgment for the balance due on it, either in his own name, or the name of his assignees, was a lien on the property as long as it remained in Ormsby, or his successor in interest. If Ormsby, or his successor in interest, had redeemed at any time within the six months, the lien would still exist, and the property would be liable for the balance due on the judgment. (Wood v. Calvin, 5 Hill, 228; Titus v. Lewis, 3 Barb. 70; McMillan v. Richards , 9 Cal. 365; Id. 117.)
2. A successor in interest is one who takes the place which another has left, and who sustains his character. The title being in Ormsby, he could convey at any time within six months. The Wormsers could not, because they had no title to convey. (7 Cow. 540; 20 Johns. 3; Van Rensselaer v. Sheriff of Albany, 1 Cow. 501; Bissell v. Pryor, 20 Johns. 3.)
Cross & Marshall, for Appellants.
Wallace & Rayle, also for Appellants, took the same positions, citing Practice Act, Sections 231, 234; and arguing, that the right to redeem is an absolute right; and that the Sheriff must allow it, when claimed in due form of law, and must equally reject it, when the statute is not strictly complied with.
Hereford & Long, for Respondent.
A redemption was effected; the Wormsers were both judgment creditors, and successors in interest of the judgment debtor, L. P. Ormsby, by virtue of their purchase at Sheriff's sale. The certificate of sale by the Sheriff to the Wormsers makes them the successors in interest of the judgment debtor, and as such, entitled to the same rights that the debtor possessed; and the debtor has the first right to redeem. And this does not take away the debtor's right to redeem from both judgments. If we are to be considered " redemptioners," then we have complied with the statute, for we served upon the Sheriff a certified copy of our whole judgment, which is as good evidence of our right to redeem, as a copy of the judgment docket.
JUDGES: Baldwin, J. delivered the opinion of the Court. Cope, J. concurring.
OPINION
BALDWIN, Judge
On rehearing, the following opinion was delivered by Baldwin, J.--Field, C. J. and Cope, J. concurring:
We think that the former judgment of this Court should stand. The Wormsers now claim as successors in interest of the execution debtor; but it seems, from the record, that this offer to redeem was not made in that character, nor could it have been, for the certificate of the Sheriff of a purchase at a sale of the property, as that of the defendant in execution, is not sufficient to entitle the holder to redeem as such successor--at least, till the expiration of the six months.
The former judgment of this Court was correct, and it is ordered to be entered.