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under execution sale acquires the legal title of the judgment debtor, defeasible upon condition subsequent, and that the effect of the sheriff's deed is not to create a new title, but is merely evidence that the title of the purchaser has become absolute.

[4] By the sheriff's sale to appellant on May 3, 1915, his judgment against L A. Walker was satisfied, and his judgment lien thereupon ceased to exist. When property is sold under execution for the full amount of the judgment, the lien created by the levy is thereby extinguished.

Seccombe, as trustee, and later was recon- | Pollard Case it was held that the purchaser veyed to her husband by the one who had purchased at that trustee's sale. Therefore, when appellant purchased the property at sheriff's sale on May 3, 1915, under the execution which had been issued on his judgment against L. A. Walker, the legal title immediately vested in him as such purchaser, subject only to the prior mortgage to Temple, then in process of being foreclosed by Boals, and subject likewise to the prior judgment lien in favor of the Grange Company-later assigned to Stickney-as well as to L. A. Walker's right to redeem the property from the sheriff's sale to appellant. Upon Woodruff's redemption of the property from the foreclosure sale to Stickney, the effect of that sale was terminated. There upon, so the argument runs, the legal title revested in appellant, and he is now the un conditional holder thereof. The logic of this contention seems irrefutable.

It will be conduce to a readier understand ing of the respective rights of the parties on and after Woodruff's redemption from the mortgage foreclosure sale if we consider the effect on the title of each successive step from and after the sheriff's sale to appellant on May 3, 1915.

[5] A "redemptioner," as that word is used in section 701 et seq. of the Code of Civil Procedure, is a creditor "having a lien by judgment or mortgage on the property sold," subsequent to that on which the property was sold. Code Civ. Proc. § 701, subd. 2. Appellant therefore, whose judgment was extinguished by the sheriff's sale to him, was not a "redemptioner" within the Code meaning of that word, and therefore he was not entitled to redeem as a "redemptioner" from the subsequent mortgage foreclosure sale to Stickney. But, though not entitled to re deem from that sale as a "redemptioner" under subdivision 2 of section 701, appellant did become and was the "successor in interest" of L. A. Walker, the principal judgment debtor in the mortgage foreclosure suit and the sole holder of the legal title immediately prior to the sheriff's sale to him; and therefore, as such "successor in interest” of L. A. Walker, he was entitled to redeem from the foreclosure sale to Stickney under subdivision 1 of section 701. Pollard v. Harlow, supra.

[2, 3] Without doubt appellant is correct in his contention that when the property was sold to him at sheriff's sale on May 3, 1915, under his judgment against L. A. Walker, he received the legal title to the property. He received a qualified legal title, but the legal title nevertheless. It was a title that was subject to the prior mortgage to Temple and to the prior judgment lien in favor of the Grange Company-subsequently held by Stickney-and subject to be defeated by a redemption by L. A. Walker at any time within 12 months from the sheriff's sale to appellant, and subject also to L. A. Walker's right to remain in possession until such time as the sheriff's deed should be executed to ap-as trustee, on October 16, 1914. This truspellant.

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[6] Such was the condition of the title on August 18, 1915, when Woodruff, under whom respondents claim, purchased at the trustee's sale held under the deed of trust which the Walkers had executed to Hatch,

By

tee's sale to Woodruff did not divest appel"If the judgment is a lien upon the real prop- lant of the legal title which had come to erty the purchaser is substituted to and ac-him through the sheriff's sale of Mày 3, 1915. quires all the right, title, interest, and claim The sheriff's sale to appellant gave him the of the judgment debtor on or at any time after title as of the date of his judgment lien, the day such judgment became a lien on such September 14, 1914, which was prior to the property." Code Civ. Proc. § 700. "The execution of the [sheriff's] deed gave execution of the trust deed to Hatch. to the purchaser at the sale no new title to the trustee's sale to Woodruff the latter may the land purchased by him, but was merely have become the "successor in interest" of evidence that his title had become absolute. L. A. Walker, and as such may have been Upon the sale he acquired 'all the right, title, entitled to redeem the property from the interest, and claim of the judgment debtors execution sale to appellant. This, however, thereto (Code Civ. Proc. § 700), subject to be Woodruff never did. Indeed, no attempt to defeated by a redemption within six months, and to the right of the judgment debtors to re- redeem the property from the sheriff's sale to main in the possession of the land until the ex-appellant ever was made by any one. It folecution of the sheriff's deed." Robinson v. Thornton, 102 Cal. 680, 34 Pac. 120.

To the same effect are Pollard v. Harlow, 138 Cal. 390, 71 Pac. 454, 648, and Leet v. Armbruster, 143 Cal. 666, 77 Pac. 653. In the

lows, therefore, that the title which vested in appellant on May 3, 1915, when the property was sold to him at sheriff's sale, is still in him, save in so far as it may have been divested by the subsequent foreclosure sale to Stickney under the Temple mortgage and

(211 P.)

The next question, therefore, which presents itself for consideration is: What effect did Woodruff's redemption from the foreclosure sale have on the title to the This is, indeed, the ultimate question presented for our determination on this appeal. [9, 10] Regardless of any question as to Woodruff's right to redeem the property from the mortgage foreclosure sale to Stickney, there can be no question here as to the validity of that redemption. It is the effect of that redemption, not its validity, that confronts us. Stickney, from whom the redemp

by Woodruff's redemption from that sale. | $4,214.23. The next question, therefore, is: What effect did the mortgage foreclosure sale to Stickney have upon appellant's title? [7] The Temple mortgage, it will be recall-property? ed, antedated the judgment lien which appellant acquired upon recording the abstract of his judgment against Walker. It follows, therefore, that when the property was sold to Stickney on February 11, 1916, under the mortgage foreclosure sale, Stickney received the legal title subject only to the right of the judgment debtor L. A. Walker to remain in possession pending the time allowed for redemption and to defeasance upon redemption was made, cannot question its validity, tion by any person qualified to redeem from even though appellant, and not Woodruff, the foreclosure sale. As has been stated, was Walker's "successor in interest" by virHatch, as trustee under the trust deed, tue of the sheriff's sale made to him under Woodruff, the purchaser from the trustee L. a judgment lien that antedated the trust O. Hatch, and C. W. Bateman, the appellant deed under which Woodruff deraigned his here, each of whom had acquired his interest claim of title. Stickney accepted payment of subsequent to the date of the Temple mort- the redemption money. And the rule is that, gage, and Mr. and Mrs. Walker, were made if the person from whom the redemption is defendants to the suit which Boals brought made consents and accepts payment of the to foreclose that mortgage. Therefore, sub-redemption money, it is as to him a valid ject to the right of L. A. Walker to remain redemption, even though the person making in possession pending the time allowed for it be not qualified to redeem. Upon princiredemption, the foreclosure sale to Stickney ples of estoppel, the person from whom the extinguished all the rights and claims of the redemption is thus made will be precluded above-named defendants in the mortgage from questioning it. Freeman on Execution foreclosure action, save that there was left (3d Ed.) vol. 3, p. 1885. Nor can any party in the mortgagors and judgment debtors L. to this action be heard to question the validA. Walker and Mary J. Walker, and in ap-ity of Woodruff's redemption, since each is pellant, as the successor in interest of L. A. Walker, and possibly also in Woodruff, as a "successor in interest" of the judgment debtors L. A. and Mary J. Walker, the right to redeem from the foreclosure sale. The effect of a foreclosure sale "is of itself to extinguish the right and claim of all the defendants in the action acquired subsequent to the date of the mortgage, and to vest in the purchaser the title of the mortgagor at the date of the mortgage, discharged of all such right and claim." Sichler v. Look, 93 Cal. 600, 610, 29 Pac. 220, 222; McNutt v. Nuevo L. Co., 167 Cal. 459, 464, 465, 140 Pac. 6. See, also, Duff v. Randall, 116 Cal. 229-230, 48 Pac. 66, 58 Am. St. Rep. 158; Pollard v. Harlow, supra; and Leet v. Armbruster, supra. [8] As we presently shall show, a redemption 701 of the Code of Civil Procedure, he tion by the "successor in interest” of a judgment debtor terminates the sale and vests the title in such "successor in interest." From this it follows that if 'appellant, as the "successor in interest" of L. A. Walker, had redeemed the property from the foreclosure sale to Stickney, such redemption would have terminated the sale to Stickney and would have revested the title in appellant. But, though appellant did not exercise his right to redeem from the foreclosure sale, Woodruff did, and Stickney, as the purchaser at that sale of the sheriff for Stickney-accepted from Woodruff the amount necessary to effect a redemption, namely, the sum of

asserting its validity as the basis of his claim of title. What, then, was the effect upon the title of the redemption made by Woodruff?

[11, 12] In order to determine the effect of Woodruff's redemption upon the title to the property it is necessary to consider the capacity in which Woodruff made his redemption from the foreclosure sale. If he made it as the "successor in interest" of the judg ment debtors and mortgagors, L. A. and Mary J. Walker, the effect of the foreclosure sale to Stickney was terminated; whereas, if Woodruff can be deemed to have made the redemption in the character of a "redemptioner," within the technical meaning of that term as used in subdivision 2 of sec

succeeded to the rights of the purchaser, Stickney; for the rule is that one who redeems from an execution sale as a "redemptioner" succeeds to the interests of the purchaser at the execution sale as fully as if he had purchased the certificate of sale. If lienors, whether by judgment or mortgage, redeem, the course of the sale is not thereby impeded or precluded, but finally culminates in a deed to the redemptioner, who will succeed to all the rights which the purchaser at the execution sale would have possessed had no redemption been made. But a redemption by the judgment debtor has a very different effect. It terminates the sale, and

restores the estate. The statute has provided court in the Weber Case, is to convey the for a redemption by but two classes of per- legal title to the trustee, who is thereby sons-the judgment debtor (or his successor vested with the absolute legal title to the in interest) and creditors having liens by premises so far as is necessary to enable him judgment or mortgage. A redemption by to convey it to the purchaser at the trustee's the latter class is for the purpose of secur- sale free of all right, title, interest, or estate ing a sheriff's deed in pursuance of the sale; of the trustors, or of any one claiming una redemption by the former class is inimical der or through them by subsequent conveyto the sale, and puts an end to it. "If the ance. Moreover, even if the trust deed to [judgment] debtor redeem, the effect of the Hatch, instead of passing the legal title to sale is terminated, and he is restored to his him as trustee, had created but a "lien" estate." Code Civ. Proc. § 703. And such for the security of the indebtedness due by also is the effect of a redemption by the L. A. Walker to Woodruff, nevertheless, when judgment debtor's "successor in interest." Woodruff purchased at his trustee's sale, it The term "judgment debtor," as used in these would be the title which, subject to all prior Code sections, includes the words "successor rights, interests, liens, and titles, would pass in interest" of the judgment debtor. While to him as purchaser at that sale. So that, the words "successor in interest" are men- if it were true that prior to his purchase he tioned in section 701 only, and the succeed- had possessed but à lien for his security, ing sections refer exclusively to the judg- such lien would have been merged in the title ment debtor and to redemptioners, still, when which he would have purchased at his trusin these succeeding sections the Code uses tee's sale. Therefore, in any view of the the term "judgment debtor," as contradisting- case, Woodruff cannot be regarded as a lienuished from "redemptioners,” the words must or at the time when he redeemed the propbe construed broadly enough to include "suc-erty from the mortgage foreclosure sale to cessors in interest" of the judgment debtor. Stickney. Phillips v. Hagart, 113 Cal. 555, 45 Pac. 843, 54 Am. St. Rep. 369. For these reasons it must be held that, if Woodruff redeemed in the character of a "successor in interest" of L. A. Walker or of L. A. and Mary J. Walker, the judgment debtors in the mortgage foreclosure suit, the effect of the redemption was to terminate the sale and to revest the title in L. A. Walker or in the person who had succeeded to that judgment debtor's estate, i. e., the person in whom the legal title would be had there been no foreclosure sale under the Temple mortgage.

[13] That Woodruff could redeem only in the capacity of a “successor in interest,” and not as a "redemptioner," is manifest. A "redemptioner," as we have seen, is one who is a creditor of the judgment debtor "having a lien by judgment or mortgage." Subdivision 2, § 701, Code Civ. Proc. But Woodruff was not "a creditor having a lien by judgment or mortgage." The trust deed under which he purchased at the trustee's sale conveyed to his grantor, the trustee L. O. Hatch, the legal title so far as was necessary to the execution of the trust. That is, though the trust deed carried with it none of the incidents of ownership other than the right to convey the title upon default on the part of the trustors, it did pass the legal title. The result of the enforcement of a trust deed may be, for all practical purposes, the same as the enforcement of a mortgage with power of sale; but a trust deed is not a mortgage and does not create a lien. Weber v. McCleverty, 149 Cal. 316, 86 Pac. 706; MacLeod v. Moran, 153 Cal. 97, 94 Pac. 604; Athearn v. Ryan, 154 Cal. 554, 98 Pac. 390; Bryant v. Hobart, 44 Cal. App. 315, 186 Pac. 379. The effect of such a deed, says the

[14] It follows, therefore, that Woodruff was not a "redemptioner," as that word is used in subdivision 2 of section 701 of the Code of Civil Procedure and in the subsequent sections, but that by his purchase at the trustee's sale, he became the "successor in interest" of the judgment debtors or mortgagors, so far as there remained in the latter any interest subsequent to the sheriff's sale to appellant on May 3, 1915. And since Woodruff could redeem from the foreclosure sale, if at all, only in the capacity of a "successor in interest," his redemption extinguished that sale-annulled it-and restored the title. Code Civ. Proc. § 703.

[15, 16] But, though the effect of Woodruff's redemption was to terminate the foreclosure sale to Stickney, which ordinarily would leave the legal title in appellant as the original successor in interest of L. A. Walker just as though the property never had been sold under the mortgage foreclosure decree, respondents seem to think, simply because the redemption from that sale was made by Woodruff, and not by appellant, that the title was diverted from appellant to Woodruff. The basis for this claim seems to lie in the assumption that the only right to which appellant succeeded as the purchaser of L. A. Walker's estate at the sheriff's sale on May 3, 1915, was Walker's right to redeem the property from the foreclosure sale to Stickney. Upon this assumption it is argued that because appellant did not redeem the property from the sale to Stickney he lost his right of redemption and now is left with nothing. But respondents are in error when they assume that appellant succeeded only to Walker's right to redeem the property from the foreclosure sale.

(211 P.)

Appellant, it is true, by his purchase at the A somewhat similar question was consheriff's sale did acquire the right to re-sidered by the Minnesota Supreme Court in deem from the mortgage foreclosure sale to a case involving an analogous, though not Stickney, but he also acquired something an identical, situation. That case arose very much greater than the mere statutory right to redeem. He succeeded to all of Walker's title and estate. Before the foreclosure sale to Stickney, appellant, as the purchaser at the sheriff's sale under his judgment against Walker, held the legal title a qualified and conditional legal title, it is true, but a legal title which, subject to the effect of the mortgage foreclosure sale, became absolute on receipt of the sheriff's deed executed to appellant on May 4, 1916. L. A. Walker, as one of the judgment debtors named in the mortgage foreclosure decree, had the right to redeem from the foreclosure sale, even though appellant had succeeded to all of his title to the premises. The statutory right of a judgment debtor to redeem is not affected by the fact that, by the transfer of his estate to another, he no longer has the title. Yoakum v. Bower, 51 Cal. 539; Southern California L. Co. v. MeDowell, 105 Cal. 99, 38 Pac. 627. If Walker had exercised the right given him by the statute to redeem from the foreclosure sale to Stickney, not only would the effect of that | sale have been terminated-save in so far as it had completely satisfied the mortgage lien and the Grange Company's judgment lienbut the title would have been revested immediately in appellant, as Walker's successor in interest. The same result must follow the redemption made by Woodruff; for Woodruff, as the purchaser under the deed of trust which the Walkers had made to Hatch as trustee, possessed no right that was superior to any of the rights held by his predecessor, L. A. Walker.

under statutory provisions quite similar to our own with respect to the effect of a redemption by a judgment debtor or his successor in interest. In the case referred to, Kopp v. Thele, 104 Minn. 267, 116 N. W. 472, 17 L. R. A. (N. S.) 981, 15 Ann. Cas. 313, the plaintiff, Carolina Kopp, and the defendant, Louis C. Kopp, as husband and wife, had executed a mortgage on the husband's land, which was foreclosed. The husband did not redeem from the foreclosure sale, but the plaintiff, as his wife, did, and thereupon went into possession. Thereafter Mr. and Mrs. Kopp were divorced, and subsequently Kopp conveyed his interest in the land to the defendant, Thele. Upon this, state of facts the Minnesota court held that the plaintiff, by virtue of her statutory interest in the land as the wife of the owner, had a right to redeem the mortgaged premises from the foreclosure sale, and that such redemption annulled the sale, but that, notwithstanding such redemption by the wife, Thele, the husband's grantor, owned the land, subject only to a lien in favor of the plaintiff for the amount she had paid to redeem, with interest, less the net value of the use of the land while in her possession. After stating that the Minnesota statute provides that the mortgagor, his personal representative or assigns, may within 12 months redeem the land sold on foreclosure sale, and that if any of them does the redemption annuls the sale, the court said:

"It follows that, when the plaintiff redeemed in this case, the foreclosure sale was annulled, leaving the legal title to the land the same as if the mortgage had never been given. Therefore her redemption could not have the effect, either in law or equity, of transferring the husband's title to the land to her. But, she having redeemed for the protection of her own interest in the premises, which necessarily resulted in protecting her husband's title, she was not a mere volunteer. Hence she is entitled, by subrogation, to an equitable lien upon the land for the amount paid on the redemption."

Mrs. Walker, it will be recalled, was divested of all interest in the property on April 11, 1914, when it was sold under the trust deed which she and her husband previously had executed to Catherine Seccombe. And though the purchaser at that trustee's sale later reconveyed the property to the husband, L. A. Walker, the trust deed to Hatch, under which Woodruff, the predecessor of respondents here, claimed title, was executed after Mrs. Walker had been divested of all interest in the land. It follows, therefore, that Woodruff, if he possessed any right of redemption whatever, was only entitled to redeem as a "successor in interest" of L. A. Walker, or, if you please, as a "successor in interest" of L. A. and Mary J. Walker-Mary J. Walker having been named as a grantor in the truth deed to Hatch-appellant's title to him. and that, for all the purposes of a redemp [17] But, though the effect of Woodruff's tion from the foreclosure sale to Stickney, Woodruff possessed no right that was superior to those possessed by L. A. Walker, and hence a redemption by him had no other effect than a redemption by L. A. Walker would have had.

The reasoning of the Minnesota court is equally applicable here. When Woodruff redeemed, the foreclosure sale to Stickney was terminated (Code Civ. Proc. § 703), thereby leaving the legal title to the land the same as if no mortgage had been given. There fore his redemption could not have the effect, either in law or in equity, of transferring

redemption from the foreclosure sale was to revest appellant with the legal title, so that he may successfully maintain this suit to quiet title, still, in seeking equity, he must do equity. Appellant's title escaped the consequences of the mortgage foreclosure sale

forced redemption of the land from the execution sale to appellant ever was effected. Bateman therefore, according to the averments of his answer in the mortgage foreclosure case, remained in the position in which he was immediately prior to the entry of the mortgage foreclosure decree, namely, the holder of the title under execution sale, subject only to the prior incumbrances and to the right of his judgment debtor to remain in possession and to redeem from the execution sale to him at any time prior to the expiration of the 12 months.

to Stickney only because Woodruff, for whose | able for the purpose, and hence no such supposed title the respondents paid the sum of $5,103, redeemed the land by paying to Stickney $4,212.35. Appellant cannot come into a court of equity asking to have his title quieted without doing equity. And we think it but equity that he should pay to respondents, as Woodruff's successors in interest, the amount which was paid by Woodruff-a payment which has made it possible for appellant to regain his title with legal interest thereon from the date of Woodruff's redemption, less, of course, the net value of the use of the land while in the possession of Woodruff and his successors. For this purpose respondents, upon the going down of the remittitur, should be given permission, if so advised, to amend their answer by setting up their equities and praying for relief accordingly.

For the foregoing reasons the judgment must be reversed, and the case remanded for retrial, unless we can say that there is merit in certain points raised by respondents and now about to be considered.

The

[18] It is claimed by respondents that the decree foreclosing the Temple mortgage established the fact that appellant was the holder of a judgment lien only, not that he acquired the title as a purchaser at execution sale, and that by that decree the court foreclosed appellant's judgment lien. record of the foreclosure proceedings does not bear out this contention. In his answer in that case appellant set up more than a claim to a mere judgment lien. His answer set forth, briefly but chronologically, the recovery of his judgment against Walker in the justice's court, the filing of an abstract of that judgment in the office of the county recorder, the issuance of a writ of execution on that judgment, the sheriff's sale of the premises to him as the purchaser at execution sale, and the issuance to him of the sheriff's certificate of sale; and he prayed that he receive from any surplus remaining from the proceeds of the foreclosure sale "the amount necessary to redeem said property from the sale to him." From this it will be seen that appellant did not claim to be a mere lienor, but that, on the contrary, by alleging a sheriff's sale of the premises to him under execution, he in effect alleged facts which showed that the judgment lien once held by him was entirely satisfied and extinguished. And the decree in that case, though it recites that formal findings were waived, declares that "all the allegations of 串 ** the answer of the defendant C. W. Bateman [the appellant here] *

are

true." While it is true that the prayer of Bateman's answer in that case asks that, if any surplus should remain after satisfying all prior claims, he might receive therefrom "the amount necessary to redeem said property" from execution sale to him, still the fact is that there was no surplus avail

[19] Nor did the foreclosure decree adjudge that appellant is merely the holder of a judgment lien. The language of the decree is:

“* *

The said C. A. Bateman has a lien against the property herein mentioned in the sum of $144, and also for his costs herein laid out and expended, taxed at $- by reason of

a certain sheriff's certificate of sale, under execution which was issued on a judgment given and made on September 3, 1914, in the justice's court of Los Nietos township."

The words which we have italicized show

the precise nature of Bateman's interest.
By the sheriff's certificate of sale, the exe-
cution of which is found by the foreclosure
decree, Bateman acquired the legal title
a qualified and conditional legal title, but
the legal title nevertheless, and not a mere
lien. It is true that the foreclosure decree
designates Bateman's interest, erroneously,
as a "lien." The error in thus denominating
appellant's interest appears on the face of
the decree itself, since it expressly finds
that the interest, whatever it was, existed
"by reason of a certain sheriff's certificate
of sale." This erroneous designation of ap-
pellant's interest is not conclusive in the pres-
ent action. For whether his interest in the
land was merely that of a lienor or whether
it was that of the holder of the legal title is
a question the determination of which was
not necessary to the relief prayed for by ap-
pellant in the answer filed by him in the
mortgage foreclosure action. Nor was the de-
termination of that question necessary to the
relief which was awarded by the decree in
that action. A determination of that question
one way or the other would not and could
not have affected the court's decision and the
relief awarded by its decree. The precise
technical character of the interest which
Bateman acquired by his purchase under the
execution on his judgment against Walker
was not a matter that was tendered for liti-
gation in the mortgage foreclosure suit, nor
was it actually litigated therein. A question
which is only incidentally involved and which
is not actually litigated-that is, made the
subject of trial and pressed upon the consid-
eration of the court-is not concluded by the
judgment so as to be res adjudicata in a sub-
sequent suit on a different cause of action.

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