McMILLAN v. RICHARDS et al.-PEOPLE ex rel. McMILLAN v. VISCHER, SHERIFF OF MARIN CO.-McMILLAE v. HYATT et al., 9 Cal. 365

Field, J., delivered the opinion of the Court—Terry, C. J., and Burnett, J., concurring. These three cases were argued together. The first is an action of ejectment; the second, an application fora mandamus; and the third, a bill in equity. In the first, judgment was rendered for the defendants; in the second, a peremptory mandamus was awarded; and in the third, the demurrer was sustained, and the bill dismissed. The first two cases depend upon the same question—the validity of the alleged redemption by McMillan, of the premises in controversy, from the sale under the decree of foreclosure.

The facts, as disclosed by the records, are briefly as follows : In December, 1851, Osio was the owner of the premises, which are situated in Marin county, and executed a mortgage upon them, to Bird, to secure a promissory note of three thousand dollars, payable in six months, with interest, at the rate of five per cent, a month. Bird assigned the note and mortgage to Edwards, and Edwards assigned them to Cary. In the meantime, Osio sold and conveyed the premises to Bandall.

In September, 1858, Cary instituted suit upon the mortgage, making Osio and Bandall defendants; and in December, 1854, obtained a decree for the foreclosure of the mortgage and the sale of the premises, to satisfy the debt due, which was adjudged to be §8,400, the amount to draw interest at five per cent, a month. From the decree, Bandall appealed to the Supreme Court, where, at the April Term, 1856, the appeal was dismissed, with twenty per cent, damages.

The remittitur having been filed in the Court below, an execution or certified copy of the decree was issued to the sheriff, by whom the premises were sold on the fourteenth of June, 1856, to Cary, for the sum of §16,000. Cary received a certificate of the sale, which, with the balance due him on the judgment, was subsequently assigned to the defendant Hyatt, to whom, on the nineteenth of February, 1857, the sheriff executed a deed of the premises. The defendants claim under this deed.

In November, 1854, Jessie Smith recovered a judgment against Banda 1, in the Fourth District Court, and on the twentieth of February, 1855, filed a transcript of its docket in the office of the recorder of Marin county. Upon this judgment execution was issued, and the interest of Randall in the premises sold thereunder, on the twelfth of March, 1855, for $2,000, at which sale the defendant Richards became the purchaser, received á certificate of sale, and on the ninth of February, 1856, a deed from the sheriff.

In January, 1855, the plaintiff McMillan recovered a judgment against Randall, in the Fourth District Court, for over fourteen thousand dollars, and filed a transcript of its docket in the office of the recorder of Marin county, on the seventh of February, 1855. On the twenty-first of July, 1855, the plaintiff recovered another judgment against Randall, in the Twelfth District Court, for over eight thousand dollars, and immediately thereafter filed a transcript of its docket in the same recorder’s office.

Upon the first judgment recovered by the plaintiff, execution was issued in January, 1856, and the interest of Randall was sold thereunder on the seventeenth of March, 1856, for $2,000, at which sale the plaintiff became the purchaser, received a certificate of sale, and on the twenty-sixth of December, 1856, a deed from the sheriff.

On the thirteenth of December, 1856, the plaintiff, in company with his counsel, called upon the sheriff of Marin county to redeem the premises from the purchase and lien of Cary under the decree in the foreclosure case—serving, at the same time, upon the sheriff a notice of redemption, accompanied with his affidavit of the amount due upon his two judgments, and duly certified copies of their dockets.

On the evening previous, the counsel of the plaintiff had requested the sheriff to prepare a statement of the amount necessary for the redemption, which he accordingly did on the following morning, making the amount $24,126 08. This sum was paid by the plaintiff to the sheriff, with a protest as to certain specified items. The circumstances attending this payment, with the protest and subsequent suits, will be fully stated and considered in determining the question how far the payment operated as a redemption.

The District Court of the Seventh District held, in the ejectment-suit, that only the sum of $17,606 87 operated as a legal payment for the purposes of redemption, and that the same was insufficient, and gave judgment for the defendants—whilst the District Court of the Twelfth District held, that a redemption was effected, and ordered a peremptory mandamus to the sheriff of Marin county, to execute a deed to the plaintiff as redemptioner. The first question presented, relates to the right of redemption by the plaintiff.

This right is denied by the defendants, and in support of their position, they contend, first, that the legal title to the premises passed to the mortgagee, upon the execution of the Osio mortgage, leaving in the mortgagor only an equity of redemption; second, that by the decree in the mortgage case, the equity of redemption was entirely barred and foreclosed, and the estate became absolute in Cary, the assignee of the mortgage; third, that the judgments of the plaintiff having been recovered after the decree of foreclosure, did not attach as liens upon the premises; and, fourth, that even if liens by the judgments originally attached, they were subsequently lost; the lien of the first judgment by the sale on the execution, although a part only of the judgment was satisfied by such sale; and the lien of the second judgment, by the sale under the Smith judgment.

There is great diversity of opinion in the adjudged cases as to the rights of mortgagor and mortgagee, both before and after condition broken, arising from the different views taken of mortgages at law and equity, and the more or less extended application of equitable doctrines to contracts of this description in Courts of Law. In England, a mortgage is regarded in law as a conveyance, vesting in the mortgagee, upon its execution, a conditional estate, which becomes absolute upon breach of its condition, and of course carrying with it all the rights and incidents belonging to the ownership of property.

Thus, the mortgagee, unless restrained by stipulations in the mortgage, is there-entitled to immediate possession of the land, and may enter peaceably, or bring ejectment; and his right to possession can not be defeated, except by payment at the period fixed by the terms of the mortgage. Payment, subsequent to that period, only gives an equity of redemption, and a re-conveyance is necessary to vest the title in the mortgagor. (Coote on Mort., 339; Greenleaf’s Cruise, 2 vol., 91.) The same doctrine prevails in several of the States. Thus, in Doe v.

Grimes, (7 Black., 1,) the Supreme Court of Indiana held that an action of ejectment would lie by the mortgagee against the mortgagor, before default. “ The law, we think,” said Sullivan, J., “ is well settled that the mortgagee, by virtue of his mortgage, becomes the legal owner of the premises, and is consequently entitled at law to the immediate possession, unless there be an agreement between the parties, expressed in the contract, or plainly inferrible from it, that the mortgagor shall remain in possession.” . (Blaney v. Bearce, 2 Greenl., 137; Newall v. Wright, 3 Mass., 139; Coleman v.

Packard, 16 Mass., 39.) But in equity, both in England and the United States, a mortgage is regarded in a very different light. The settled doctrine of equity is, that a mortgage is a mere security for a debt, and passes only a chattel interest; that the debt is the principal, and the land the incident; that the mortgage constitutes simply a lien or incumbrance, and that the equity of redemption is the real and beneficial estate in the land which may be sold and conveyed by the mortgagor, in any of the ordinary modes of assurance, subject only to the lien of the mortgage.

This equitable doctrine, established to prevent the hardships springing by the rules of law from a failure in the strict performance of the conditions attached to the conveyance, and to give effect to the just intent of the parties in contracts of this description, has been, in most of the States, gradually adopted by the Courts of Law, although in some instances to a limited extent only (4 Kent, 160.) The cases indicate a fluctuation between equitable and common law views of the subject; and a hesitation by the Courts of Law to carry the equitable doctrine to its legitimate results. (Cray v.

Jenks, 3 Mason, 521.) “Unless the different purposes of a mortgage are adverted to,” observes Parker, C. J., in Smith v. More, (11 N. H., 59,) “ there would appear to be much confusion in the books relative to the rights of the mortgagor and mortgagee; and with those purposes in view, an attempt to reconcile them would be made in vain.” The law concerning estates in dower, referred to by the defendants’ counsel, furnishes an illustration of the change which the original character of mortgages has undergone.

To entitle a widow to dower, the seizin of the husband must have been more than an equitable seizin ; it must have been a legal seizin of the estate of inheritance. In the case of Steele v. Carrol, (12 Peters, 204,) Taney, C. J., said “ that, according to the principles of the common law, a widow is not dowable in her husband’s equity of redemption; and if a man mortgages in fee before marriage, and dies without redeeming the mortgage, his widow is not entitled to dower.” But in the case of Collins v.

Torry (7 John., 277), it was adjudged that the estate of the mortgagor is the real estate at law, and that the widow of the mortgagor may recover her dower out of the land mortgaged, the Court saying : “ We have in this State (Hew York) gone greater lengths than the precedents in the English books towards a recognition of the mortgagor’s estate at law." In Runyan v.

Mersereau, (11 John., 538,) which was an action of trespass, the question presented was, whether the freehold was in the plaintiff, who had purchased the equity of redemption under a judgment against the mortgagor, or in the defendant, the mortgagee, whose mortgage was prior to the judgment; and the Court held the freehold to be in the pflaintifl^ and said: “ Mortgages are not considered as conveyances of land, within the Statute of Frauds, and the forgiving the debt, with the delivery of the security, is holden to be an extinguishment of the mortgage.” In Jackson v.

Bronson, (19 John., 325,) the mortgagor sustained ejectment against the grantee of the mortgagee, and the Court said: “ It is now well settled, that the mortgagee has a mere chattel interest, and the mortgagor is considered as the proprietor of the freehold. The mortgage is deemed a mere incident to the bond, or personal security for the debt, and the assignment of the interest of the mortgagee in the land, without an assignment of the debt, is considered in law as a nullity.” In Gardner v.

Heartt, (3 Denio, 234,) Beardsley, J., says: “A mortgage creates a specific lien on the land mortgaged, as a judgment duly docketed does a general one on the land of the judgment-debtor. But the mortgagee, as such, has no title to the land mortgaged; he has neither jus in re nor ad rem, but a mere security for his debt; title to the land, notwithstanding the mortgage, remaining in the mortgagor.” In Waring v. Smith (2 Barb. Ch.

Rep., 135,) Chancellor Walworth said : “ Before the adoption of the revised statutes, it was settled by the Courts of this State, that the mortgagor was to be considered as the real owner of the fee, of the lands mortgaged, except for the mere purpose of protecting the mortgagee as the holder of a security thereon for the payment of his debt. And the revised statutes have restricted the legal rights of the mortgagee still further, by depriving him of the power to bring a suit to recover the possession of the mortgaged premises before a foreclosure.

The only right he now has, in the land itself, is to take possession thereof, with the assent of the mortgagor, after the debt has become due and payable, and to retain such possession until the debt is paid. The mortgage, then, is here nothing but a chose in action, or a mere lien or security upon the mortgaged premises, as an incident to the debt itself.” The cases cited above, from Johnson’s Reports, were decided several years previous to the adoption of the revised statutes referred to by the Chancellor. A provision, more extensive in effect than the Mew York statute, is embodied in our Practice Act.

Section 260 reads as follows: “ A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale.” This

section takes from the instrument its common law character, and restricts it to the purposes of security. It does not, it is true, in terms, change the estates at law of the mortgagor and mortgagee, but, by disabling the owner from entering for condition broken, and restricting his remedy to a foreclosure and sale, it gives full effect to the equitable doctrine, upon a consideration of which the

section was evidently drawn. An instrument which confers no right of either present or future possession, possesses little of the character of a conveyance, and can hardly be deemed to pass any estate in the land. The just and liberal doctrines of equity respecting mortgages have been adopted in this State, and asserted, either directly or indirectly, in repeated instances, by this Court. In Godeffroy v.

Caldwell, ( 2 Cal., 493,) it was said that “ mortgages at the pres-sent day are considered as merely securities for the payment of money, and no breach of their conditions can possibly vest the title in the mortgagee.” In Peters v. Jamestown Bridge Company, (5 Cal., 336,) the mortgagee, Perry, had conveyed the property to one person, and assigned the mortgage to another. The plaintiff was the grantee of the property, and the defendants were assignees of the mortgage.

The defendants commenced an action to foreclose the mortgage, and obtained a decree, and were proceeding to sell the property when the plaintiff brought suit, enjoining them from further proceedings, on the ground that the sale would create a cloud upon his title. The Court below decreed a perpetual injunction, and upon appeal to this Court, the decree was reversed; and Heydenfeldt, J., said: “The deed from Perry to plaintiff could not operate as an assignment of the mortgage.

The latter is a mere security for the debt, and cannot pass without a transfer of the debt; so it would seem that the two transactions are totally different in character; the intent of the one is to convey the title to land; of the other*, to transfer a debt with its security. If a contrary doctrine was maintained, it would produce the evil (as in this case) of enabling a net to be thrown for the entrapment of the innocent.” In Bennett v.

Taylor et al., (5 Cal., 502,) the facts are not stated, but it would appear from the opinion that exception had been taken to the introduction in evidence of a mortgage, without first producing or accounting for the note to secure which it was given, and Murray, O. J., said: “ The mortgage was a mere incident to the debt, and in order to maintain the action, which was founded on the plaintiffs’ possession and the mortgage, the debt should have been proved.” In Ord v.

McKee, (5 Cal., 515,) the Court said: “A mortgage is a mere incident to the debt which it secures, and follows the transfer of the note with the full effect of a regular assignment. Ord, having the right to the note, had undoubtedly a right to foreclose the mortgage.” In Guy v. Ide, (6 Cal., 99,) the plaintiff had obtained an order appointing a receiver of the rents and profits of the mortgaged premises, pending a suit to foreclose the mortgage. On appeal, this Court, per Terry, J., said: “Our statute forbids a mortgagee from recovering the mortgaged estate, and confines his remedy to a foreclosure.

The same reason does not, therefore, exist, as by the English rule, for appointing a receiver to collect the rents and profits, pending the litigation. The mortgage is considered as only the security for the debt; the estate remains that of the mortgagor, in the character of owner, and must continue to remain so, with all the incidents of ownership, until, by a foreclosure and sale, a new owner is substituted.” In Phelan v. Olney, (6 Cal., 478,) the doctrine of Ord v. McKee, and Bennett v. Taylor, was affirmed. In Belloc v. Rogers, (9 Cal.

Reports,) Burnett, J., said, arguendo: “At common law, a mortgage vested the legal title in the mortgagee, subject to be defeated by the performance of the condition subsequent.

But this theory is entirely changed by our system, and the legal title remains with the mortgagor, subject to be divested by a foreclosure and sale.” The decisions of this Court, from which the above Citations are taken, were made, with one exception, in equity cases; but the language of the Court does not appear, in any instance, to have been governed by a consideration of the tribunal in which the remedy was sought, but entirely from a consideration of the nature of the contract.

The mortgage being a mere security for a debt, it must follow that the payment of the debt, whether before or after default, will operate as an extinguishment of the mortgage. Indeed, in those Courts, with some few exceptions, where the common law view of mortgages is the most strictly adhered to, payment of the debt is held to re-vest the estate without a re-conveyance in the mortgagor, though it is difficult to see upon what principle.

If the mortgage is a conveyance after default, it must be equally so before; the only difference being that, in the one case, the estate convoyed is conditional, and in the other absolute. If, after default, the estate be absolute, it is not easy to perceive how the grantee can be divested without deed under the Statute of Frauds; and yet, according to the general doctrine of the modern cases, payment has that effect. This is one of the inconsistencies arising from a partial adoption of the equitable doctrines by the Courts of Law. In truth, the original character of mortgages has undergone a change.

They have ceased to be conveyances, except in form. They are no longer understood as contracts of purchase and sale between the parties, but as transactions by which a loan is made on the one side, and security for its repayment furnished on the other. They pass no estate in the land, but are mere securities, and default in the payment of the money secured does not change their character.

Proceedings for the foreclosure of mortgages, in the sense in which the terms are used in England, and in several of the States, by which the mortgagor, after default, is called upon to repay the loan by a specified day, or he forever barred of his equity of redemption, are unknown to our law. The owner of the mortgage in this State can in no case become the owner of the mortgaged premises, except by purchase upon sale under judicial decree consummated by conveyance.

A foreclosure-suit, by our law, results only in a legal ascertainment of the amount due, and a decree directing the sale of the premises, for its satisfaction, the surplus, if any, going to subsequent incumbrancers or the owner of the premises, and execution following for any deficiency. And by the decision of this Court, in Kent & Cahoon v. Laffan, (2 Cal., 595,) the statutory right of redemption is held equally applicable to sales under decrees in mortgage cases, as to sales under ordinary judgments at law. Whether this decision would be now made, were the question an open one, it is unnecessary to determine.

It has been repeatedly recognized as law by this Court, (Harlan v. Smith, 6 Cal., 173,) and has been acted upon by parties for years; rights of property have been acquired under it, which we are not at liberty at this day to disturb. By this decision, the estate of the mortgagor and of the judgment-debtor after sale, stand upon the same footing, and the insertion in the decree of a clause foreclosing the equity of redemption is a useless formula, which cannot enlarge the effect of the decree, or any rights of the mortgagee under it.

The decisions as to the estate of the judgment-debtor, after sale, become, therefore, authorities for determining the estate of the mortgagor after sale under decree; and from them it will be found that the estate must remain in the mortgagor until a consummation of the sale by conveyance, as it does in the judgment-debtor, and that the conveyance, when executed, will take effect, in the one case, from the date of the mortgage, as it does in the other from the time the lien of the judgment attached.

By a statute of New York, passed in 1820, any creditor was entitled to redeem premises sold under execution, if he had a lien upon them by a decree in chancery or judgment at law, rendered before the expiration of fifteen months from the date of the sale. Under this act the question was raised in the Courts of that State as to the estate of the purchaser previous to the execution of the conveyance, and as to the effect, as liens, of decrees and judgments recovered after the sale; and it was held that until the deed was executed, the purchaser had a lien only on the land, (Bissel v.

Payne, 20 John., 3;) that the estate of the debtor was not changed by the sale and certificate of the sheriff, and the purchaser acquired no title until the conveyance was executed, (Van Rensselaer v. Sheriff of Albany, 1 Cowen, 511;) that the existence of the judgment at the time of the sale was not essential to the lien; that it became a lien, if recovered within the fifteen months after sale. (Van Rensselaer v. Sheriff of Onondaga, 1 Cowen, 443,) even though the judgment were confessed for the express purpose of enabling the creditor to redeem. (Snyder v.

Warren, 2 Cowen, 518.) There is no difference, so far as the liens of the judgments are concerned, between our statute and that of Hew York. Here the statute requires the lien by the judgment of the creditor to be subsequent to that on which the property is sold; there the statute requires the judgment which creates the lien to be recovered before the expiration of the time of the redemption. The period within which the judgment creating the lien must be recovered is not limited in either case by the sale; and in Kent & Gaboon v.

Laffan, the judgment under which a redemption was claimed was recovered after the sale of the premises under the decree of foreclosure, although this fact does not appear in the report of the case. It follows, from the views above expressed, that the legal title of the premises remained in Randall after the sale, under the decree of foreclosure, and that the plaintiff acquired a lien by his judgments; the lien of the first judgment attaching on the 7th of February, 1855, and of the second on the 21st of July of the same year.

The lien of this last judgment was extinguished by the sale under the Smith judgment, made on the 12th of March, 1855, followed by a conveyance from the sheriff, which, by relation, took effect on the 20th of February, 1855, when the judgment became a lien. The second judgment of the plaintiff could not, therefore, be available as a basis of redemption on the 13th of December, 1856; and the right of the plaintiff to redeem, as a creditor, must rest upon the first judgment.

Upon this judgment, execution had been issued, and the premises sold to the plaintiff on the 17th of March, 1856, for two thousand dollars ; and it is objected by the defendants that this sale extinguished the lien of the judgment for the residue. The question raised by this objection is not a new. one. It was before the Court, in Vandyke v. Harman, in 1853. (3 Cal., 296.) In that case, the plaintiff was the holder of a mortgage to secure a note of $1,500, and obtained judgment for the amount, and a decree for the sale of the mortgaged premises. At the sale he became the purchaser for $1,000.

The respondents, who were creditors of the mortgagor, having a lien upon the premises, paid to the sheriff the amount bid by the plaintiff, with eighteen per cent, thereon, and interest to the date of the redemption, and claimed a deed. This the sheriff refused to execute, and the respondents applied to the Court below, and obtained a mandamus to compel its execution. On appeal, the judgment was reversed, and the Court, per Heydenfeldt, J., said: “ The sum paid to the sheriff to redeem the land, was insufficient for that object. The whole amount of Vandyke’s judgment, with interest, should have been paid.

The language of the statute is explicit. If the

interpretation insisted upon by the respondents be correct, that by the purchase of the property the lien of the creditor purchasing is gone, even for the purpose of redemption, then the statute would have no meaning whatever.” The same question was before this Court for consideration in Knight v. Fair, (9 Cal.) and the decision in Vandyke v. Harman was affirmed. In Knight v. Fair, the plaintiff was the owner of a judgment, and the purchaser of the real property sold.

The successor in interest paid to the purchaser an amount greater than his bid, but less than the amount due on the-judgment, and. the payment, was held ¡insufficient for.aredemption. , Iii.th'e, opinion in, the case,¡Burnett, Jv, said“ The, tw,o, hundred,and,thirty-first

section of the ¡Code allows, the judgmentrdehtor, or ,9, redemptioner, to -redeem within-six :mon,ths after the sale, by paying the purchaser the amount of his puiy cha^e,, with.eighteen per cent, thereon, in addition, together with any assessments 01* .taxes, and interest on,such amount; and if the’purchaser be, also a. ¡creditor, having alien prior to that of-the redpmptio.ner, the amount of such lien, with interest.” “Itps certain, from- this explicit language, that the purchaser mqy haye a ¿¿¿a,upon the. property prior to that of. the redemp-' tioner.

"The fagt" that he .is the, creditor does,-not divest liis lien. He may he. both apreditor apd a purchaser, and still have a prior, lien- to that- of the redemptioner. This can only be.upon the prin-, ciple, ¡that the- legal estate is still in the .judgment-debtor until-the, delivery of,the sheriff.’s-deed; and, if in the- debtor, it is such-an! estate as may be the subject of a lien, a sale under execution, or.; of a conveyance by deed, from the debtor. * * *, We are compelled to.give the statute -this .construction; If we do not,,, itjhas np.meaning.” . . - ...

The cases cited by the-.counsel of the defendants from the. Hew < York Reports, are.not.in confliet.with the.decisions of this Court. 1 In Hewson v. Deygert, ;(8, John., .333,,) .the, purchaser .was -not. the owner of the judgment. The premises were bid in by a third party,. In, such case, the. purchaser .must take the -property discharged of the, lien.pf the judgment,, otherwise no one would be sáfe impurchasing-ata sheriff’s sale for a snip, less than the full ampun'tpf the,. judgment, as the property-in his hands would b"e ¡ subject to re-sale, as. often as any balance remained unsatisfied.

Tbip.is a-yery different question from the one involved in Vandyke v. Harman, and in Knight v. Fair, where the owner of the. judgment; became, the..purchaser. Besides, the only point deci- - ded-.in.Hewsopp: JDeygert was, that, the Court would: not inters ■ ferp, in a

summary way, by rule, -to stay .a second-, sale- of the premisos, upd-eE.the sanie.judgment,,the party,with;the title hay.-.-; ing a remedy by action in case of injury; and as to the effect of - thé^alein .discharging the lien on the judgment, the Court states !

«expressly that it only intimates its impression, -and ¡gives “no de-, ' cided opinion.” In Í82p,.the.Legislatufe-ofHe,w Yorkrprpvided, in ¡the-statute . .which authorizes,redemptions, that “the-plain-tiff, ¡under whose.:-execution any-real, estate shall have, been' s.old, shall, not -.be authorized to acquire {t}ie -title of the, original purchaser, or of any creditor .to. jhe premises, so sold, by virtue- of the decree or judg- « m,en.j; ¡oli which such, execution- issued/] ’(2 R.

S., 373, § 58,) and-; the decisions pitedTrom,.Cowen .and,-Wendell w.ere, made year»,, afte^ymr.da/ (tq Ex parte Stevens, (4 Cowen, 133,).‘the Owner pf > th.fjud^enS-^ap^ol -the purchaser,¡ap'd', the,decision,-was- made, r in view of. the ’ provision of the statute, as is evident from the syllabus of the reporter.. In People v. Easton, (2 Wend., 297,) the sale under the execution was.made for a sum exceeding the judgment, which was thus satisfied. The owner was, óf course, no longer a creditor having a lien.

It is further insisted by the counsel of the defendants, that the time of redemption, under the sale upon the judgment of the plaintiff, having expired on the 17th of September, 1856, Randall became thereby divested of all interest in the premises, and there remained no interest’in him on the 13th of December, upon which the judgment could „ subsist as a lien. The answer to this is, that the title,remained in the debtor until conveyance executed. Until then, the, purchaser had no legal estate'in the premises, but only a right to an.estate wji.ich might,be perfected by conveyance.

This point was expressly decided in Smith v.

Colvin, (17 Barb., 161.) That was, an action of ejectment, and it was objected to the plaintiff’s recovery that his legal estate had become divested- by a sale on execution and the expiration of the time of redemption before trial, and the Court said : “ This ground is untenable, because the sale had not been consummated by sheriff’s conveyance. ,, * The title does not pass by filing the sheriff’s certificate, which only operates as a lien by way of action to protect the purchaser against intervening claims, except the right of redemption. .Mor does the estate of the debtor become vested in the purchaser by mere lapse of the time of redemption, but only, as we think, by the sheriff’s conveyance under the statute.” (Vaughn v.

Ely, 4 Barb., 159.) The case of Wright v. Douglass, (2 Comstock, 373,) does not, when properly considered, conflict .with Smith v. Colvin., The decision in that case was based upon the effect, under the statute of Mew, York, of an attachment upon the equitable interest.of the, debtor in land. ‘ The objection of the- defendant goes to the capacity in which the plaintiff undertook to redeem, .and not to his right of redemption.

If the lien of the. judgment was extinguished by the lapse of.the time of redemption, then the plaintiff was the successor in interest of Randall, and as such, was equally entitled to redeem. We do not perceiv.e the foree.of the objection,, that the operative effect of payment, as a redemption, is to.be determined by the capacity in which a party entitled to redeem presents himself before the officer.: -It can (make no difference, to, the purchaser, whether the money is paid by the plaintiff as successor in: interest, or as creditor, having a lien. ¡ .

The next question, .for. consideration ig, whether (he, payment of.$24,146 08, made on the, thirteenth of,December, 1856, operated as a. redemption of .the premises.,, The circumstances ocefirping at time, aye detailed .in, ,^,9.. tes jipi opy of, the sheriff, set forth in the findings of the Court. From this it appears that on the evening previous, the plaintiff, by his counsel, informed the sheriff of his intention to redeem the premises, and requested the officer to make out a statement of the amount necessary to be paid for the redemption.

To this the officer, after some objection, assented, and on the following day made out the amount at $24,146 08. What then took jdace is thus stated by the officer : “ Mr. Shatter said that was too much; that the amount required would not amount to seventeen thousand dollars, but he would pay whatever sum I demanded, and insisted I should name the amount.

Me paid me the amount, twenty-four thousand one hundred and forty-six dollars and eight cents; he protested against paying the amount; said it was too much; it was, at the same time, in the office; he requested me to give a statement of the items, as I figured it up; there was a written protest served at the time Sbafter asked me for the certificate; I think he prepared the certificate; I signed it; Shatter told me probably that was not the end of the matter, and requested me to deposit in Garrison & Co.'s, to save the interest during the litigation.

About one week after, I deposited a portion with Tallant & Wilde, and a portion with Parrott & Co. * * I mean by protest, only that he said the sum was too much. The written protest was after I had counted the money, and found it correct. I read the certificate, and signed it; can’t say whether certificate was executed before protest or after. * * I knew it to be correct. I selected my own bankers; Shatter advised me as to Parrott. There was no arrangement about the money.

Sbafter said a portion of the money was borrowed of Garrison & Co." The written notice of protest, referred to in the testimony of the sheriff, specified the items to which objection was made. After the payment, as described above, and at the same interview, the plaintiff requested the sheriff to deposit the money with Messrs. Garrison & Oo.# bankers, San Francisco, assigning as a reason that a part of the same had been loaned by them at two per cent, per month, and would probably be tied up by litigation for several months, and by such deposit the interest could be provided for.

On the twentieth of December, the sheriff proceeded to San Francisco, from Marin county, and deposited a portion of the money with Tallant & Wilde, and a portion with Parrott & Co., receiving certificates of deposit for the same.

Whilst the sheriff was in San Francisco, the plaintiff commenced a suit against him for the recovery of ten thousand dollars, as for money had and received to his use, and issued an attachment, and, according to the statement of the Court in its finding, “ caused the money so deposited to be attached in the hands of the bankers to satisfy any judgment which he might recover in the action," and which “ money remained so attached at the commencement and trial” of the ejectment-suit.

Afterwards, on the seventeenth of February, 1857, the plaintiff filed a bill in equity, upon which an injunction was issued and served, restraining the bankers from, using or paying out the moneys deposited, and the sheriff from negotiating the certificates of deposit. In the bill, which was duly verified, the plaintiff alleged that the sum of $6,700, left with the sheriff, was not due and payable as a portion necessary for the redemption, and that the sheriff had no right to the same. The suit in equity was undetermined, and the injunction in force at the commencement and trial of the ejectment case.

Upon these facts, the defendants contend that no redemption was made, and this involves the consideration of the effect of the protest upon the payment; the effect of the attachment upon it; and the effect of the injunction. The object of a protest is to take from the payment its voluntary character, and thus conserve to the party a right of action to recover back the money. It is available only in cases of payment under duress or coercion, or when undue advantage is taken of the party’s situation. It has no application to voluntary payments.

It does not create a lien upon the money paid, or any legal impediment to its control. It does not impair, in any respect, the operative effect of the payment as a discharge of the demand upon which it is made, so far as such demand is legal. It is notice, only, to the party receiving the payment, that, if the demand is illegal in whole, or in any specified particulars, he may be subjected to an action for the recovery back of the amount to which objection is made; and if action be brought, the protest is only available as evidence of the fact of compulsion. In Fleetwood v.

The City of New York, Sandford, J., said: “ The legal effect of the payment is not impaired by the protests made. When a party pays under duress of his goods, a protest may become important as evidence that the payment was the effect of the duress, and not an admission of the right enforced by the adverse party. But where there is no legal compulsion, a party yielding to the assertion of an adverse claim, cannot detract from the force of his concession by saying I object, or I protest, at the same time that he actually pays the claim.

The payment nullifies the protest as effectually as it obviates the previous denial and contestion of the claim.’’ (See, also, Chase v. Dwinall, 7 Greenl’f, 134; Clinton v. Strong, 9 John., 370.) It is unnecessary' to decide whether the protest in the present case can be available for any purpose. It is of no consequence whether the payment was voluntary or otherwise.

It was absolute, untrammeled by conditions. “ There was no arrangement,’’ testifies the sheriff, “ about the money.” Complaints of the amount required, objections in the words “I protest,” whether made orally or in writing, were not clogs upon the absolute dominion of the officer over the money. He could have paid the same to the purchaser immediately, or on the following day, or at any time during the week.

He received ¡the money on . the 13th, and no proceedings were taken ¿gaihsfhim. for the allégéd •excess'ml til the 20th; ' ", The attachment could hot impáir the legal óffectof the. judgment. ' It Was not a recaption of the money; nor even alien 'npoh’itó It is true, .'the Court finds that the plaintiff caused th'e money in the hands of the bankers to be" attached., and that'the , attachinent remained' upon it at the trial of .the ejectment-suit"; but this finding is inconsistent with', and negatived‘by, the previous finding that .the bankers had already issued certificate,s of deposit to the sheriff, for the money.

These certificates arfe ¡mesura ed to be in the ordinary form; it is not, found that they were special arid restricted in their character/"they were then negotiable instruments under the statute, according to the .decision of this Court in Welton v.

Adams & Co., (4 Cal.,R., 27; Compile Laws, 146.) The bankers, by the certificates, became liable, not to refund to the sheriff the specific "money deposited, hut to pay its ¿mount to the" holder óf the certificates, on their presentation.- After their issuance, there was nothing, in the possession of the bankers'belonging'to the sheriff upon" .which. an attachinent could fasten. • There remained merely ah obligation, to" pay the holder of the certificates, whoever he might be.:' (Sheets v. Culver, 14 La., 449; Kimbal v.

Plant, Ibid., 511.) Whether the certificates could' have’b'eeri.reached by any proceedings under attachment whilst in the hands of the officer, it is unnecessary to determine. No such proceedings were taken, arid it is sufficient that the money.deposited could not have been affected by the attachinent. In the argument of counsel, the character of'the suit seems to have been lost áight.óf." The suit is not;based.upon anysupppsefi present intferest of the plaintiff in thé specific money paid'.on redemption; it involves no assertion of title, but proceeds upon the relation of creditor" arid'debtor. .

The ."complaint in.the action alleges an indebtedness, and the words “ had and received’to the plaintiff's use,” are put. as"the consideration upon whiclVto "support tlie Assumpsit on the part of the .defendant. Where money is paid upon tiompulsion, the law raises ¿n" pbligation, to,refund, and the form of the'action "'is for money had and received to tBe plaintiff's use. The argument attempted to b,e drawn from" the technical language tb qualify the payment, is based'upon a mis"conceptidn of the nature of the action, apd.the-.character of. the pleadings‘in iti.

". '" . ■ ’ .. . - "The bill upon Which the injunction was issued,.alleges the facts in" relation to the redemption of the premises) and the subsequent deposit of thfe money with'bankérsiri San Francisco, and the issuance of certificates by tliem, and as .distinct grounds of ¡fch.e equity jurisdiction ayers the irresponsibility of .the sheriff .and his sureties, and sets. forth .the various pretences of Hyatt, tfiat’tjie^edemption was imperfect and ‘abortive; that the judgment under which it was made was fraudulent and void; "that "the amount-paid was insufficient for redemption, or ineffectual, by reason of the protest, all of which pretences, it says, are false in fact; and further avers that Hyatt’ has induced'- the sheriff, by giving" a bond of indemnity, to execute to him a deed of the" premises, and yet insists that in case the redemption should prove effectual, he will be entitled to the sum of $24,146 08.

"The bill concludes with a prayer for the'injunction above mentioned,'and that "a -receiver be appointed to take the custody of the certificates, and to hold the same for the purposes of the suit, and to invest the funds at interest, pending the litigation ; that an account of the money paid under protest, be taken, and that the excess", above the amount essential to effect a redemption, be decreed to be paid to the plaintiff, and in the event the Court should adjudge, for any reason, the redemption to be inoperative, then that the whole sum be decreed to the plaintiff; but in the event the redemption should be adjudged valid, then that so'''much of "the amount as was essential for the redemption,-be paid to the parties entitled thereto.

To the bill the defendants demurred; some of them on the ground that it did not show any redemption by the plaintiff; and the others, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained on this last ground; and the bill dismissed. The facts stated in the bill do not constitue a case for the cognizance of a Court of Equity. It does not present a case of trust.

If the redemption -was invalid, the plaintiff is entitled to the whole of the money; but if valid, and there was any excess in the payment, he is entitled to such excess, assuming (for we do not attempt to decide the question) that the payment of such excess was by compulsion. In either case, the remedy at law is ample. Whatever hypothesis is taken, the sheriff can only he a debtor, either for the whole amount, or for the excess, and his insolvency is no ground for the interference of a Court of Equity. The demurrer was, therefore, well taken.

As there was no ground for the equity-suit, it can have no effect upon the validity of a transaction which was closed on the thirteenth of December previous, except as evidence of the intent of the parties at the time. And, neither from the language, br scope and purpose of the- bill, can any inference be drawn against the absolute and unconditional character of the payment.

It contains not a word which can be tortured into an admission against the claim-of the plaintiff. -That the parties entitled to the money may have been injured by the injunction; is possible"; but they have their remedy on the" injunction-bond. In Ex parte Hewall, (4 Hill, 589) the creditor paid, unconditionally, to the sheriff the-requisite amount for redemption, and immediately thereafter served an injunction in his own favor, restraining the sheriff from paying it over, and it was held, nevertheless, that he was entitled to the sheriff’s deed.

The bill in that case was filed, and the injunction obtained in advance, forbidding the sheriff from paying over the money, which the creditor might pay to effect the redemption, until the further order of the Court of Chancery, and it was objected that, in consequence of the service of the injunction there was no redemption; but the Court, by Bronson, J., said: “Whether the injunction was properly issued or not, is a question for the Court of Chancery. Asssuming that it was regular, and that the money is stayed in the hands of the sheriff, we are still of opinion that there was a good redemption by Addington.

He made an unconditional payment of the amount of the bank-judgment, and the sheriff received and receipted the money before the injunction was served. The redemption was then complete, and subsequent service of process to stay the money in the hands of the sheriff, could not undo what had already been well done. It is not like the case of a tender, trammeled with conditions, or an offer of payment without parting with the money. This authority is conclusive on the point in the case at bar.

After a careful consideration of the objections of the learned counsel of the defendants, we are of opinion that the redemption of the thirteenth of December, 1856, was complete; and the subsequent attachment and injunction-suits could not undo what was then well done. In the mandamus case there is the further objection raised by the defendants, not involved in the determination of the other cases—that the proceedings were taken in the wrong county. The deed of the twenty-sixth of December was executed to the plaintiff in his capacity as purchaser.

Sixty days having elapsed from the time of his redemption from the sale under the decree of foreclosure, he became entitled to a further deed as redemption er, under

section two hundred and thirty-two of the Practice Act, and the proceedings were taken in the District Court of San Francisco, to compel the execution of the deed. The county where a cause is to be heard is to be determined, with some specified exceptions, by the residence of the parties. The general rule under the statute in force at the time these proceedings were instituted, is contained in

section twentieth of the Practice Act, which provides that the action shall be tried in the county in which the parties, or some of them, reside at its commencement. This case is not embraced by any of the exceptions, and, therefore, falls within the general rule. The second subdivision of

section nineteenth, which provides that actions against a public officer for acts done by him in virtue of his office, shall be tried in the county where the cause or some part thereof arose, applies only to affirmative acts of the officer, by which, in the execution of process, or otherwise, he interferes with the property or rights of third persons, and not to mere omissions or neglect of official duty. (Elliott v. Cronks, Adm., 13 Wend., 35; Hopkins v. Heywood, Ib., 265.) Hor does the proceeding involve the determination of a right or interest in real estate.

The relator claims only an official document, the possession of which will enable him to assert any rights he may have acquired. The awarding of the mandamus cannot determine these rights, or in any respect affect the interests of third parties. The objection, therefore, to the county, is untenable. It follows, from the views we have taken of these cases, that the judgment in the ejectment case must be reversed, and the judgments in the other two cases affirmed. In the ejectment case, all the facts are found by the Court below; and it is the settled practice of this Court, since the decision of Holland v.

The City of San Francisco, to direct in such cases upon a reversal, the entry of the judgment warranted by the facts found. In McMillan v. Richards et al., therefore, the judgment is reversed, with directions to the Court below to enter judgment in favor of the plaintiff for the possession of the premises described in the complaint, and the recovery of the damages assessed, for their use and occupation. In the other two cases the judgment is affirmed.