only be upon the principle 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. In all cases where a mere lien exists, the legal estate must be in some other party than the mortgagee. This legal estate and the consequent right to discharge the lien and save the estate is of value and can be sold. 9 Cal. 118.

SEC. 56. If property be so redeemed by a redemptioner, either the judgment-debtor or another redemptioner may within sixty days after the last redemption again redeem it from the last redemptioner, on paying the sum paid on such last redemption with four per cent. thereon in addition and the amount of any assessment or taxes which the said last redemptioner may have paid thereon after the redemption by him, with interest on such amount, and in addition the amount of any liens held by said last redemptioner prior to his own, with interest: provided, that the judgment under which the property was sold need not be so paid as a lien. The property may be again, and as often as the debtor or a redemptioner is so disposed, redeemed from any previous redemptioner within sixty days after the last redemption with four per cent. thereon in addition, and the amount of any assessments or taxes which the last previous redemptioner paid after the redemption by him with interest thereon, and the amount of any liens other than the judgment under which the property was sold held by the last redemptioner previous to his own, with interest. Notice of redemption shall be given to the sheriff; if no redemption be made within six months after the sale, the purchaser or his assignee shall be entitled to a conveyance, or if so redeemed, whenever sixty days have elapsed and no other redemption has been made and notice thereof given, the time for redemption shall have expired and the last redemptioner or his assignee shall be entitled to a sheriff's deed. If the debtor redeem at any time before the time for redemption expires, the effect of the sale shall be terminated and he be restored to his estate. The payments mentioned as aforesaid may be made to the purchaser or redemptioner, as the

case may be, or for him, to the officer who made the sale. When the judgment under which the sale has been made is payable in a specified kind of money or currency, said payments shall be made in the same kind of money or currency, and a tender of the money shall be equivalent to payment. Gen. Laws, 5171, 5172.

A redemptioner shall produce to the officer or person from whom he seeks to redeem and serve with his notice to the sheriff:

1st. A copy of the docket of the judgment under which he claims the right to redeem, certified by the clerk of the court or of the county where the judgment is docketed, or if he redeem upon a mortgage or other lien, a note of the record thereof certified by the recorder.

2d. A copy of any assignment necessary to establish his claim, verified by the affidavit of himself or of a subscribing witness thereto.

3d. An affidavit by himself or his agent, showing the amount then actually due on the lien.

Until the expiration of the time allowed for redemption, the court may restrain the commission of waste on the property by order granted with or without notice, on the application of the purchaser or the judgment-creditor. But it shall not be deemed waste for the person in possession of the property at the time of sale or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used, or to use it in the ordinary course of husbandry, or to make the necessary repairs of buildings thereon, or to use wood or timber on the property therefor, or for the repair of fences, or for fuel in his family while he occupies the property. The purchaser from the time of the sale until a redemption, and a redemptioner from the time of his redemption until another redemption, shall be entitled to receive from the tenant in possession the rents of the property sold or the value of the use and occupation thereof. Gen. Laws, 5171-5175.

SEC. 57. A purchaser of land at sheriff's sale can maintain an action for rent against the tenant in possession under the judgment-debtor before the expiration of the six

months allowed for redemption, and as often as the rent becomes due under the terms of the lease existing when he purchased. The sale operates as an assignment of the lease for the time. 7 Cal. 46.

SEC. 58. A judgment-debtor who redeemed his property within twenty-one days after the sheriff's sale, but who had received from his tenants in possession four hundred dollars rent between the day of sale and the redemption, was held liable to the purchaser at the sale for the amount so received. 17 Cal. 596.

SEC. 59. At sheriff's sale of premises in a foreclosure suit by plaintiff against R., plaintiff became the purchaser. During the six months succeeding the sale, C., acting as agent of defendants, occupied the premises, carrying on the business of a saloon. At the end of six months, defendants, as mortgagees, redeemed: Held, that the defendants are tenants in possession within the two hundred and thirty-sixth section of the practice act, and must pay plaintiff for use and occupation for the six months. 18 Cal. 113.

Purchaser Evicted may Recover Price of.

SEC. 60. If the purchaser of real property, sold on execution or his successor in interest, be evicted therefrom in consequence of irregularities in the proceedings concerning the sale, or of the reversal or discharge of the judgment, he may recover the price paid, with interest, from the judgment creditor. If the purchaser of property at sheriff's sale or his successor in interest, fail to recover possession, in consequence of irregularity in the proceedings concerning the sale or because the property sold was not subject to execution and sale, the court having jurisdiction thereof shall, on petition of such party in interest or his attorney, revive the original judgment for the amount paid by such purchaser at the sale, with interest thereon from the time of payment, at the same rate that the original judgment bore; and when so revived the said judgment shall have the same effect as an original judgment of the said court of that date and bearing interest as aforesaid, and any other or after-acquired property, rents, issues or profits, of the said. debtor, shall be liable to levy and sale under execution in

satisfaction of such debt: provided, that no property of such debtor sold bona fide before the filing of such petition, shall be subject to the lien of said judgment; and, provided further, that notice of the filing of such petition shall be made by filing a notice thereof in the recorder's office of the county where such property may be situated; and that said judgment shall be revived in the name of the original plaintiff or plaintiffs, for the use of said petitioner, the party in interest. Gen. Laws, 5176.

Deed.

SEC. 61. Although a sheriff's deputy may execute a deed for property sold under execution, he must execute it in the name of the sheriff. If executed in his own name it is decisive against the party claiming under it. 3 Cal. 266.

SEC. 62. A sheriff's or constable's deed, executed under an execution sale which does not recite the judgment on which the execution was issued, is void. 25 Cal. 230.

SECTION 1. In Amador, San Diego, Santa Barbara, Trinity, Klamath and Siskiyou counties, a lawful fence must be: If made of stone, four and one-half feet high; if made of rails, five and one-half feet high; if made upon the embankment of a ditch three feet high from the bottom of the ditch, the fence must be two feet high; it must be substantial and reasonably strong and made so close stock cannot get their heads through it, and if made to turn small stock, sufficiently tight to turn them. A hedge fence, to be considered a lawful fence, must be five feet high and sufficiently close to turn stock. Gen. Laws, 3029.

SEC. 2. The following is a lawful fence in all the counties, except the above-named counties and Tuolumne, San Bernardino, Colusa, Placer, Yuba, Shasta, Tehama, Contra Costa, Sonoma, El Dorado and Marin:

1st. Wire fence shall be made of posts not less than twelve inches in circumference, set in the ground not less

than eighteen inches and not more than eight feet apart, with not less than three horizontal wires, each one-quarter inch in diameter, the first eighteen inches from the ground, the other two at intervals of one foot between each, well stretched and securely fastened, with one slat, rail, pole or plank, securely fastened to the post not less than four and one-half feet from the ground.

2d. Post and rail fences shall be made of posts, of the same size and distance apart and depth in the ground as above, with three rails, slats or planks, of suitable size and strength, the top one to be four and one-half feet from the ground, the other two at equal distances between the first and the ground, fastened to the post.

3d. Picket fences shall be of the same height as above, made of pickets, each not less than six inches in circumference and not more than six inches apart, and shall be driven in the ground not less than ten inches, all well secured at the tops with slats or caps.

4th. Ditch and pole fences shall be made of a ditch not less than four feet wide on top and three feet deep; embankments thrown up on the inside of the ditch, with substantial posts set in the embankment not more than eight feet apart, and a plank, pole, rail or slat, securely fastened to said posts at least five feet from the bottom of the ditch. 5th. Pole fences shall be four and one-half feet high, with stakes not less than three inches in diameter, set in the ground eighteen inches, seven feet apart, and with not less than six horizontal poles well secured to stakes; if six feet apart, five horizontal poles; if three or four feet, four poles; if two feet, three poles, and the stakes need not be more than two inches in diameter; if one foot apart, one pole, and the stakes need not be more than two inches in diameter. The above is a lawful fence so long as the poles. are securely fastened and in a good state of preservation.

6th. Brush fences shall be four and one-half feet high and at least twelve inches wide, with stakes not less than two inches in diameter, set in the ground not less than eighteen inches, one on each side every third foot, tied together at the top, with one horizontal pole tied to the outside stake five feet from the ground. Gen. Laws, 3032.