1875-4 CODE OF CIVIL PROCEDURE. more than the amount bid by the second or subsequent purchaser, and the amount collected from the purchaser refusing to pay. 625 These two to make sections not officer property not capable of manual how deliv- 698. (§ 227.) When the purchaser of any per- Personal sonal property capable of manual delivery pays the purchase money, the officer making the sale must deliver to the purchaser the property, and, if desired, execute and deliver to him a certificate of the sale. Such certificate conveys to the purchaser all the right which the debtor had in such property on the day the execution or attachment was levied. NOTE.-See Wellington vs. Sedgwick, 12 Cal., p. 469. property of manual how sold and 699. (§ 228.) When the purchaser of any per- Personal sonal property not capable of manual delivery pays not capable the purchase money, the officer making the sale must delivery execute and deliver to the purchaser a certificate of delivered. sale. Such certificate conveys to the purchaser all the right which the debtor had in such property on the day the execution or attachment was levied. NOTE. The purchaser of a judgment on sale under execution and levy takes as assignee only. The judicial sale of a judgment passes no title other than would pass by an assignment by the owner.-Fore vs. Manlove, 18 Cal., p. 436. The word "officer," in the two previous sections, means the incumbent at the time of the act of sale; and if he be dead his successor cannot perform the duty.-People vs. Boring, 8 Cal., p. 406. A Sheriff's bill of sale of personal property sold on execution need not contain all the formalities of a regular certificate. When a Sheriff, without authority, sells personal property on an execution, if the judgment debtor was present, and assented to the sale, the purchaser will acquire a good title as against the judgment debtor.-Lay vs. Neville, 25 Cal., p. 551; Woods vs. Bugbey, 29 Cal., p. 469; generally, see Davis vs. Mitchell, 34 Cal., p. 87. Commented on in note to Sec. 691, ante; see, also, Sargent vs. Sturm, 23 Cal., p. 359. 79-VOL. I. Real property, when absolute 700. (§ 229.) Upon a sale of real property, the purchaser is substituted to, and acquires all the right, sale or not. title, interest, and claim of the judgment debtor thereto; and when the estate is less than a leasehold of two years' unexpired term, the sale is absolute. In all other cases the property is subject to redemption, as provided in this Chapter. The officer must give to the purchaser a certificate of sale, containing: In the latter case, what the certificate must contain. 1. A particular description of the real property sold; 4. When subject to redemption, it must be so stated. And when the judgment, under which the sale has been made, is made payable in a specified kind of money or currency, the certificate must also show the kind of money or currency in which such redemption may be made, which must be the same as that specified in the judgment. A duplicate of such certificate must be filed by the officer in the office of the Recorder of the county. NOTE.-1. GENERALLY.-The decisions as to the estate of the judgment debtor after sale become authorities for determining the estate of the mortgagor after sale under the 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 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.-McMillan vs. Richards, 9 Cal., p. 365. This section comprehends sales of real estate under decrees of foreclosure of mortgage. A subsequent judgment creditor having lien has right to redeem real estate sold by foreclosure of previous mortgage.-Kent vs. Laffan, 2 Cal., p. 595. See as to other general matters, Thorn vs. San Francisco, 4 Cal., p. 127; Duprey vs. Moran, 4 Cal., p. 196. 2. SHERIFF'S CERTIFICATE OF SALE. Purchaser receiving certificate has not a title to property, but a lien on the same. Assignment of certificate as security. See Baber vs. McLellan, 30 Cal., p. 137; Peo ple vs. Mayhew, 26 Cal., p. 660. When officer making sale dies, who makes out certificate, etc.-See People vs. Boring, 8 Cal., p. 406. 3. PARTICULAR DESCRIPTION OF REAL PROPERTY SOLD.-Description of city lots by numbers referring to official city map held sufficient.-Welch vs. Sullivan, 8 Cal., p. 165. 4. WHAT PROPERTY MAY BE REDEEMED.-See, for general matters, Seal vs. Mitchell, 5 Cal., p. 401; McMillan vs. Richards, 9 Cal., p. 365; Montgomery vs. Tutt, 11 Cal., p. 307; Tuolumne Redemption Co. vs. Sedgwick, 15 Cal., p. 515; Whitney vs. Higgins, 10 Cal., p. 554; McDermott vs. Burke, 16 Cal., p. 580; Frink vs. Murphy, 21 Cal., p. 108; Dutton vs. Warschouer, 21 Cal., p. 609; Stout vs. Macy, 22 Cal., p. 649; Grattan vs. Wiggins, 23 Cal., p. 16; Moore vs. Martin, 38 Cal., p. 428; Carpentier vs. Brenham, 40 Cal., p. 221. See note to next section. 5. WHAT TITLE ACQUIRED AT SHERIFF'S SALE.An assignee of a Sheriff's certificate of sale, as security against his liability for debts of the judgment debtor, with an agreement that he will cancel the same when the debts are paid, and his liability is discharged, ceases to have any interest in the certificate when the debts are paid, and if he afterwards obtains a Sheriff's deed, he does not acquire any title to the land.-Baber vs. McLellan, 30 Cal., p. 135. Where a duplicate of a Sheriff's certificate of sale had been deposited by the Sheriff with the Recorder of the proper county, indorsed "filed" by the latter officer, recorded as a deed in a book of records of deeds, and regularly indexed as a deed, and afterwards placed in a file of recorded deeds, but not with a file of certificates of sales, where it remained in said Recorder's office till the time of the trial of the case, some ten years afterwards, it imparted notice to subsequent purchasers by the instrument thus deposited and preserved.-Page vs. Rogers, 31 Cal., p. 293. During the period which elapses between the sale of land on execution and the expiration of the time for redemption, the statute regards the purchaser as the equitable owner of the land, subject only to the right of redemption, and gives him the rents, profits, etc.; in short, the entire beneficial interest in the property,' except the actual possession.-Page vs. Rogers, 31 Cal., p. 293. If a plaintiff, in an action of foreclosure, purchases the property at Sheriff's sale, he is deemed to buy with full knowledge of all defects in the proceedings relating to service of the summons.-Steinbach vs. Leese, 27 Cal., p. 297. Until the Sheriff has given Real property so sold, by whom it may be redeemed. a deed of real property sold upon execution, the estate remains in the judgment debtor. Until then, the purchaser possesses only a right to an estate which may afterwards be perfected by conveyance.-Cummings vs. Coe, 10 Cal., p. 529. The title of a purchaser of real estate at Sheriff's sale is not affected by the return of the officer.-Cloud vs. El Dorado County, 12 Cal., p. 128; Clark vs. Lockwood, 21 Cal., p. 220; Moore vs. Martin, 38 Cal., p. 438; Blood vs. Light, 38 Cal., p. 654. Purchaser's title to property bought at Sheriff's sale, discussed in Blood vs. Light, 38 Cal., p. 649, and cases there cited; see, also, Kenyon vs. Quinn, Sup. Ct. Cal., April Term, 1871. Tenant liable to purchaser for rent during period of redemption.—Webster vs. Cook, 38 Cal., p. 423; Harris vs. Reynolds, 13 Cal., p. 516; Henry vs. Evarts, 30 Cal., p. 525; Page vs. Rogers, 31 Cal., p. 294. See, also, further, as to what title is acquired at Sheriff's sale, note to Sec. 701, post. 701. (§ 230.) Property sold subject to redemption, as provided in the last section, or any part sold separately, may be redeemed in the manner hereinafter provided, by the following persons, or their successors in interest: 1. The judgment debtor, or his successor in interest, in the whole or any part of the property; 2. A creditor having a lien by judgment or mortgage on the property sold, or on some share or part thereof, subsequent to that on which the property was sold. The persons mentioned in the second subdivis ion of this section are, in this Chapter, termed redemp tioners. NOTE.-A sale without any right of redemption is a valid and sufficient remedy for the enforcement of the contract, and an act denying a right of sale would probably be such a vital assault upon the obligation as practically to destroy it, and therefore be unconstitutional. But a repeal of a right of redemption—in other words, an act making a sale absolute instead of conditional-would not impair the contract. These regulations were mere provisions of sale, governing the course of the process and its effects. The contract of indebtedness is not touched by these provisions; it stands as it stood before, a valid obligation to pay money, with the sanctions furnished by law for its enforcement. The mere fact that the judgments of the plaintiff were recovered before the passage of the Act of 1859, did not vest in the holders of them the right to redeem from a sale made after the passage of the Act of 1859, upon any terms different from those prescribed by that Act. If this right to redeem was an incident to the judgment, under the Act of 1851, it was a portion of the remedy which might be taken away by the Legislature at any time before the right had become vested by the party availing himself of it. Commenting on Whitney vs. Higgins, 10 Cal., p. 554, as to equitable right of redemption in favor of certain persons not made parties to a mortgage foreclosure.-Tuolumne Redemption Co. vs. Sedwick, 15 Cal., p. 515. See, also, case of Moore vs. Martin, 38 Cal., p. 439, sustaining the last named case, and holding Thorne vs. San Francisco, 4 Cal., p. 127, to be overruled by Tuolumne R. Co. vs. Sedgwick. Possession should not change to the purchaser until the expiration of the time limited for redemption.-Guy vs. Middleton, 5 Cal., p. 392; Stout vs. Macy, 22 Cal., p. 647. The equitable right to redeem property sold under a decree of foreclosure held by subsequent incumbrancers is merged into a statutory right, not by any force given to the language of the decree, but by the fact that they have had their day in Court, and an opportunity of setting up any equities they possessed. After the decree they stand, as to their right of redemption, in the same position as ordinary judgment debtors.-Montgomery vs. Tutt, 11 Cal., p. 317. As to the right to redeem property sold on execution, the Court say: "The statutory right in some instances exists where there is no equity, and in other instances in connection with the equitable right. Parties to the suit in which the judgment is rendered, under which the sale is made, are restricted to the six months given by statute, for they have had their day in Court, and their rights after decree depend entirely upon the statute. Parties acquiring interests pending suits to enforce previously existing liens, have no equity; and are confined to the rights given by the statute; and so, as a consequence, are those whose interests are acquired after judgment docketed or sale made; but parties obtaining interests subsequent to the plaintiff and before suit brought, who are not made parties in such suit, possess both the equitable and statutory right. They may redeem under the statute, or they may file their bill in equity."-Whitney vs. Higgins, 10 Cal., p. 547; see, also, Montgomery vs. Tutt, 11 Cal., p. 317. The redemption should be beneficially construed. A |