sale of the mortgaged premises, and obtained a decree [110] in his favor for his part of the proceeds *of the sale and received it. How then can he say the property was not sold for him and under his judgment? As well might Esnault have claimed the right to redeem if the property had not realized enough to satisfy his demand. To prevent this very thing the act has been specially framed.

V. The property having been sold under the judgment and decree in Esnault v. Williams, that judgment could no longer be a lien upon the property. (See Bowman v. Hovious, 17 Cal. 471.)

John H. Moore, for Respondent.

I. The judgment of the Court denying the mandamus is correct. Kealy was a judgment creditor of mortgagor Williams. Said judgment was a lien on the premises in question, subsequent to the Esnault judgment, though rendered at one and the same time and in the same decree. The assignees being subsequent incumbrancers were redemptioners. (Pr. Act. 230.) It is denied that the Kealy mortgage is merged in the Esnault judgment; but if extinguished and merged by the foreclosure suit, it is merged in the Kealy judgment, which is of necessity separate from the Esnault judgment. It is contended that no principle in equity would take from Kealy vested rights and give them to Esnault. But were it, as contended by counsel, that the Esnault and Kealy judgments are one and the same, Kealy would be without remedy; Esnault would have the power to satisfy the judgment and defeat entirely Kealy's judgment-he being the prior judgment creditor having control of the judgment.

II. Younger mortgagees have a subsisting interest in the estate mortgaged, and have a right to pay off prior incumbrancers in order to make their own claims available. (10 Cal. 552; Story's Eq. 1023.)

III. The obvious policy of the law is, that the estate of a judgment creditor should be so managed as to liquidate the largest amount of his debts, and Courts, in giving construction to remedial statutes, will so construe them. (2 Cal. 595.) The Esnault judgment was satisfied by the sale of the premises. Kealy's judgment was not satisfied.

The legal

estate of the premises was still in the judgment debtor, Williams, until the delivery of *the Sheriff's [111] deed. Kealy being a judgment creditor, and his lien

not being extinguished, he or his assignee had a right to redeem.

NORTON, J. delivered the opinion of the Court-FIELD, C. J. and COPE, J. concurring.

This is an application for a mandamus to compel the defendant to execute a conveyance of certain property sold by him as Sheriff, etc. The application is contested upon the ground that the property has been redeemed, and the question is, whether the persons claiming to have redeemed it are redemptioners within the meaning of the statute? The sale was made under a judgment of foreclosure, and the persons redeeming are assignees of one Kealy, who was a junior mortgage creditor, and a party to the foreclosure suit. The decree of foreclosure ascertained the amount due to Kealy on his mortgage, and directed the proceeds of the sale, after paying the plaintiff's demand, to be applied to the demand of Kealy, and a small sum was so applied, leaving, however, a large portion of Kealy's demand unsatisfied.

The embarrassment in this case is occasioned by a decision of this Court and subsequent statutory regulations applying the right of redemption from ordinary judgment sales to sales under a decree for the foreclosure of a mortgage. Aside from statutory regulations, a sale under a judgment gave the purchaser an indefeasible title as against any subsequent incumbrancers. By statute, a certain time was allowed to such incumbrancers to redeem from such a sale. But by a sale under a decree of foreclosure, the rights of no persons were affected who were not made parties to the action; but the rights of all who were so made parties were ascertained and provided for, and the subsequent incumbrancers were after such sale barred and foreclosed of all equity of redemption. As under our system, as now regulated, a right of redemption is given to subsequent incumbrancers from sales on foreclosure as well as on ordinary judgments, it would render the system more consistent if the same effect should be attributed to a sale under a decree of CAL. REPTS., VOL. XXI.-8

113

foreclosure as under an ordinary judgment; that is, that it should give a good title against all subsequent incumbrancers,

although not made parties, who did not redeem under [112] the statute. But it has been *repeatedly decided by this Court that such incumbrancers were not cut off from their general right to redeem, unless made parties. In case, then, a subsequent incumbrancer is not made a party to a foreclosure suit, he has the right to redeem under the statute, and also his general right to redeem unaffected by the foreclosure. The second subdivision of section two hundred and thirty of the Civil Practice Act gives a right of redemption to a creditor having a lien subsequent to that on which the property was sold. Ordinarily, in this State, in an action to foreclose a mortgage, subsequent incumbrancers, as well by mortgage as by judgment, are made parties by a general averment that they have some claim or lien, and the decree makes no provision for their benefit, but bars and forecloses them from their general right of redemption. In such cases there can be no doubt that such subsequent incumbrancers may redeem under the statute, as they are embraced within the letter of its provisions. But in the present case, the amount due to Kealy as a subsequent mortgagee was fixed by the decree, and the proceeds of the sale directed to be applied on his mortgage next in order after the mortgage of the plaintiff in that action, and a portion of the proceeds were in fact applied on Kealy's mortgage. Under these facts, must it be held that the property was sold under Kealy's mortgage as well as under the mortgage which the action was specially instituted to foreclose? If so, then Kealy's assignees do not come within the letter of the statute, nor, perhaps, within its spirit. Strictly it may be said that the property was sold on Kealy's mortgage, since the proceeds were applied, after paying the plaintiff's claim, on his mortgage; but to hold that the expression, "on which the property was sold," can apply to any other lien than that which the action was brought to enforce, would lead to uncertainty and embarrassment in applying the right of redemption under the statute. Instead of having the simple criterion of the date of the successive liens as a guide, the terms of the decree would have to be consulted in order to

see if the proceeds were directed to be applied on any and which of the subsequent liens. The Legislature could not have reasonably intended such a criterion, and we should not so interpret the statute unless its terms peremptorily require it. Considering the whole system of redemp*tions as affected by our statutes, we think the phrase [113] "on which the property was sold" must be held to refer to the lien which the action was brought to enforce, and that it does not apply to the liens of subsequent incumbrancers who are made parties. The result is, that the assignees of Kealy had the right to redeem on their lien for the unpaid balance of the Kealy mortgage.

The order refusing a mandamus is affirmed.

SHERBOURNE v. YUBA COUNTY.

COUNTIES WHEN NOT LIABLE FOR ACTS OF OFFICERS.-A quasi corporation, such as a county, is not liable for the acts of officers or employés which it appoints in the exercise of a portion of the sovereign power of the State by the requirement of a public law, simply for the public benefit, and for a purpose from which the county, as a corporation, derives no benefit.

1 IDEM-FOR INJURIES BY PHYSICIAN.-Thus, a county is not liable in damages to one who, while an inmate of the County Hospital, sustains injuries from unskillful treatment by the Resident Physician, or from the failure on the part of the officers of the hospital to supply sufficient and wholesome food.

APPEAL from the Tenth Judicial District.

The complaint avers that on the seventeenth day of April, 1860, plaintiff, while a resident of Yuba County, had his leg broken by an accidental fall, and that being an indigent person he applied as such for admission to the County Hospital of said county, and was in due form admitted thereto as a patient; that during his stay in the hospital he was not furnished with sufficient food, and such as he did receive was unwholesome; that the bed furnished him was filthy and unclean; that he did not receive proper care from the attend

'Liability of county, cited as authority in Crowell v. Sonoma Co., 25 Cal. 315; see Huffman v. San Joaquin Co., post 426; Barnet v. Contra Costa Co., 67 Cal. 78. Bee 44 Mo. 481; 54 Wis. 532; 71 Ill. 357.

ants; that the treatment of his broken limb by the physician was grossly negligent and unskillful, and that as a result he suffered much unnecessary pain and is now a cripple for life, while with proper treatment he would have entirely recovered from the effects of the fracture; that from this negligent and unskillful treatment he has sustained damages in the sum of $30,000, for which the county is liable; that he presented his demand for this amount to the Board of Supervisors of the county, by whom it was rejected, and prays judgment for the said sum of $30,000.

[114]

*The complaint was demurred to, on the ground. that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and judgment given for defendant, from which plaintiff appeals.

C. E. DeLong, for Appellant, made the following points:

I. Counties and like public corporations are subject to legislative control, and by statute may be made liable to the performance of duties such as one imposed by the laws concerning county hospitals. (Coles v. The County of Madison, Bre. 120.)

II. Counties may be sued in tort as well as in contract. (McCann v. Sierra County, 7 Cal. 124.)

III. The County of Yuba was bound by law to maintain its indigent sick and provide for them proper sustenance and skillful medical treatment. (Stat. of 1854, 131; Id. 1855, 67; Id. 1856, 69; Id. 1860, 191.)

IV. A municipal corporation, failing in the discharge of a duty imposed upon it by law, is liable in damages to one sustaining injury thereby. (4 Hill, 531; Just. 703; Cowp. 79; Milede v. New Orleans, 12 La. An. 15; Rochester White Lead Co. v. The City of Rochester, 3 Comst. 463.)

F. L. Hatch, District Attorney, for Respondent.

NORTON, J. delivered the opinion of the Court-FIELD, C. J. and COPE, J. concurring.

The plaintiff in this action seeks to recover compensation from the county of Yuba for the damage which he sustained by reason of the unskillful treatment he received from the