FRINK v. MURPHY, 21 Cal. 108

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 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 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 maltes 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 redemptions as affected by our statutes, we think the phrase “ 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.