GUILLERMO ABADIE v. JOSÉ LOBERO, CLARA COTA LOBERO, His Wife and THOMAS B. DIBBLEE, 36 Cal. 390

By the Court, Sawyer, C.

J.: On the 31st of October, 1859, Mariano Olivera executed a note in favor of John Temple for eight hundred dollars, and to secure it at the same time jointly with his wife, executed a mortgage on the “ Rancho La Gaviota.” Afterward, on the 20th of March, 1861, said Olivera and wife entered into a contract with Domingo, Juan, and Marcelina Abadie, under the firm name of Domingo Abadie & Brothers, to pasture for said Abadie & Brothers, on said rancho, for two years, a large number of cattle, and to secure the performance of said contract to pasture on the part of Olivera and wife, they also executed a mortgage on said “Rancho La Gaviota.” In the month of April, 1864, William Abadie recovered a judgment against said Abadie & Brothers, for twenty-six thousand dollars, and, under an execution issued on said judgment, had sold, and himself purchased in for two hundred dollars, the cattle of the defendants, which were at the time being pastured on said rancho under said contract, but there was no seizure or sale under said execution of said contract to pasture.

The cattle, only, were sold. On the 10th of August, 1865, Temple commenced suit to foreclose his mortgage against Olivera and wife, making William Abadie a party, as claiming some interest in the premises. Servide was had on Olivera and wife, but not on Abadie, nor did he appear. Ho notice of lis pendens was filed. On the 6th of Hovember, 1865, the default of Olivera and wife was entered.

On the 22d of December, and before entry of judgment, Olivera and wife by deed, duly acknowledged and recorded, conveyed the mortgaged premises, for a valuable consideration, to defendant Clara Cota Lobero, without notice of the pendency of the foreclosure suit. On the 25th of December, 1865, a final judgment, directing a sale of the mortgaged premises, was entered in said suit of Temple, and on the 6th of February, 1866, the mortgaged premises were sold under the judgment to Temple, the plaintiff in the suit.

On the 30th of April, 1866, Clara Cota and her husband, José Lobero, by deed duly recorded, conveyed said premises for the full cash value to defendant Dibblee. On the 16th of February, 1866, the present plaintiff, William Abadie, claiming to redeem as owner of the mortgage given to Abadie & Brothers, to secure the contract for pasturage, paid to Temple the full amount of his judgment, which Temple accepted, and thereupon gave to said Abadie a notice in writing, addressed to the Sheriff, stating that William Abadie had redeemed the premises sold, by paying the full amount required by law for such redemption.

Afterward the Sheriff executed a deed of conveyance to said William Abadie in pursuance of the sale and direction of the judgment. On the 30th of June, 1866, Temple died. Abadie applied for a writ of assistance to obtain possession, which was successfully resisted by defendant Dibblee. On the 26th of July, 1866, an order in the case of Temple v.

Olivera et al. was entered, reciting the death of Temple—that Temple in his lifetime had transferred all his interest in the action to William Abadie, and that it was necessary to open the judgment and make Lobero and wife and Dibblee parties, in order to determine their rights, and directing the said judgment to be opened, that the said William Abadie be substituted as plaintiff, and that Lobero and wife and Dibblee be made defendants.

Thereupon, said Abadie, as plaintiff, filed a supplemental complaint against Lobero and wife and Dibblee, in which he alleged, among other things, the proceedings herein stated, and that the conveyance to the wife of Lobero and to Dibblee were fraudulent, and prayed for a writ of assistance, and, if that could not be had, for a judgment foreclosing the mortgage against all the parties, for sale of the premises, and application of proceeds to payment of the judgment, and a personal judgment against Olivera for any deficiency. The charge of fraud seems to have been abandoned.

The referee found, among other things, the facts above stated, and that the action ought to be dismissed as against Dibblee and Lobero and wife, and that Abadie was not entitled to any relief against any of the defendants. Judgment having been entered in pursuance of the findings, Abadie appeals from the judgment. That William Abadie was not a redemptioner within the meaning of the statute is clear. He was not a judgment creditor of Olivera and wife, nor does it appear that he had any lien whatever upon the premises sold.

It is not pretended that he had any, unless he in some mode acquired the mortgage given to Abadie & Brothers to secure the performance of the contract to pasture cattle, and it is not shown or claimed that he acquired that contract, unless it passed to him by virtue of the sale of the cattle under the execution issued upon the judgment in the case of William Abadie v. Abadie & Brothers. But the levy upon and sale of the cattle passed no interest whatever in the pasturage contract or the mortgage given to secure it.. The specific cattle and the pasturage contract had no necessary connection.

They were wholly distinct and independent classes of property. After the sale of the cattle, the contract to pasture a given number of cattle might still have been valuable to Abadie & Brothers, for they might have had or obtained other cattle, or sold their interest in it to others who had cattle. There was no levy of the execution upon, or sale of, their interest in the contract as such, and the seizure and sale of the cattle alone no more passed an interest in the contract, than a sale or assignment of the contract would have passed the title to the cattle.

The plaintiff in the supplementary proceeding, therefore, had no right to redeem. But Temple recognized, and in all respects treated him as a redemptioner, accepted his money, and gave him a certificate of redemption addressed to the Sheriff; and it may be conceded, for the purpose of this opinion, that, since Temple was satisfied and treated the redemption as valid, it was good, or, if not good as a redemption, as between these parties, amounted to an assignment of the certificate of sale. This is the most that can be claimed, for neither party contemplated any other transaction than a redemption.

Abadie claimed the right to redeem, paid his money in the character of a redemptioner, and supposed he was redeeming. Temple recognized that view, accepted the money on the theory that it was a redemption, and gave a certificate that a redemption had been made, in order that the Sheriff, upon the expiration of the time allowed for others to redeem, might execute the proper deed to the redemptioner. The only rights acquired, then, contemplated by either party, were such as a redemptioner acquires by virtue of a valid redemption from a purchaser at a Sheriff’s sale.

That is to say, he acquired the rights of purchaser, as purchaser, which is an inchoate title to the interest in the land which was sold. When a redemptioner redeems the sale is not vacated, terminated, or in any way affected. Ho new sale takes place, but, on the contrary, when the time for further redemption expires, the Sheriff’s deed is made to the redemptioner instead of the original purchaser. The effect of such a redemption, as between the purchaser and redemptioner, is precisely the same as though the purchaser had assigned the certificate of sale.

The only difference in the consequences relates to the redemptioner and others, also having a right to redeem. The purchaser acquires an equitable title to the interest sold, subject only to be defeated by a redemption, which title will become perfected by lapse of time, if no redemption is made, without any other act than the execution of the final conveyance of the Sheriff. (Page v. Rogers, 31 Cal. 301.) The redemption by a judgment creditor, or mortgagee, passes the title acquired by the purchase to the redemptioner, subject only to further redemptions. ITe gets this title, and no more.

He acquires no title to the judgment under which the sale took place, or to the demand upon which it is recovered, or to an undivided part of the judgment, when the whole amount of the judgment is not bid. This would, certainly, be the case where the purchaser, from whom the redemption is made, is an entire stranger to the suit. It would not be pretended that a stranger purchasing land under a judgment and execution, by virtue of his purchase also becomes the owner of the judgment, or of an aliquot part of the judgment, corresponding to the amount of his bid. He simply buys the land, and nothing more.

So, when the plaintiff in the execution buys in the property, as purchaser he acquires the same interest as any other purchaser, and no more, and a party redeeming from him acquires his interest as purchaser, and no more; that is to say, he gets by the redemption the interest in the property sold which passed by the sale. He in no sense becomes the owner of the judgment, or the demand upon which the judgment is recovered, nor of any part of it. A purchaser at a Sheriff’s sale, under a mistake of fact, may, in a proper case, have the sale set aside and be released from the purchase.

But we are not aware of any rule of law which puts the purchaser as such in the place of the judgment creditor and gives him the control of the suit in which the judgment under which the sale was made was recovered; a fortiori there would be ho such rule in favbr of the vendee or assignee of the purchaser. In this case the present plaintiff, Abadie, by virtue of his redemption, or virtual assignment of the certificate of sale, acquired, at most, the interest of Temple in the land as purchaser, only, and not his interest in the judgment and debt, upon which it was based.

If he is entitled to have the sale vacated, we do not see upon what principle he can claim to be the assignee or successor in interest in the judgment, and as such be substituted as party plaintiff for the original plaintiff. If there is any authority for such a proceeding, it has not been brought to our attention. The cases referred to, where judgments have been opened as well as the sales set aside, are cases where the plaintiff in the suit and not the purchaser, has applied to have the judgment opened.

There are cases where purchasers under a mistake of facts, and under mistake of law, have been relieved from the purchase on their own application, but we know of none where the purchaser, by virtue of his purchase alone, has not only been relieved from the purchase, but substituted for the plaintiff in the case, and had the judgment opened and the case further prosecuted in his own name. It is true a dictum is found in Boggs v.

Hargrave, 16 Cal. 566, to the effect that upon the application of a purchaser, the Court may not only direct the sale to be set aside and the satisfaction cancelled, but also “ authorize a supplemental bill for a resale of the premises to be filed and conducted in the names of the complainants in that suit,” for the benefit of the purchaser, but no authority is cited for the latter proposition, and none, going so far, has fallen under our observation. Fowler v. Harbin, 23 Cal. 630, decides nothing affecting the question.

Concede it to be so, however, for it is unnecessary to decide the point now, there is nothing stated in the case to sustain the position that the purchaser may, without notice to the original plaintiff, or his legal representatives, in case of his death, have the judgment opened and himself substituted as plaintiff, and thenceforth proceed as though he were the plaintiff and sole party in interest. Such was the course adopted in this case.

The original plaintiff died, and without even making his representatives parties, or notice to them, the present plaintiff, on his own application, had the judgment opened and himself substituted as plaintiff, filed a supplemental complaint, and then proceeded, without the prior plaintiff or his legal representatives, to prosecute the proceedings as though he was the only party entitled to be heard. We think the whole proceeding irregular, under any view, without making the representatives of Temple parties, and that the judgment upon the supplemental complaint is correct.

We do not perceive how the point made by appellant as to whether Lobero and wife, or Dibblee, had notice of the proceedings in the foreclosure suit can aid him, if sustained. If they purchased pending the action or after final judgment, with notice, the judgment is binding upon them, and there is no ground for setting aside the sale, or opening the judgment. But the referee finds that the wife of Lobero took without notice, and we think the action was still pending after default, and until final judgment was entered. The doctrine of relation, invoked, has no reference to a case of this kind.

If it did, the first act of the series, resulting in the .final judgment, is the filing of the complaint, and the final judgment might as well relate to that act as to the entry of the default in the Clerk’s office, preliminary to the action of the Court in ascertaining the amount due, and ordering final judgment. If it be admitted, then, that final judgment affords constructive notice to parties dealing with the subject matter, without the filing of a notice of Us pendens, there was no final judgment, and the action was still pending when at the date of the conveyance to Clara Cota, wife of Lobero.

Dibblee is in no worse position than his grantors. The judgment must be affirmed, and it is so ordered.