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47 Cal. 82

Sharp v. Miller

California Supreme Court

Decided July 1, 1873

California Supreme Court · decided 1873-07-01

The action was brought to compel the defendant to deliver up a sheriff’s deed to be canceled, and to enjoin a conveyance of the premises. The plaintiff acquired the title to the premises in suit by deed of gift from her husband, J. F. Sharp, in December, 1870. In February, 1868, the defendant, Miller, obtained a decree against Sharp, foreclosing a mortgage upon the premises in controversy and a fiity-vara lot at North Beach.

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Decided 1873-07-01

How this case has been cited

Cited by 5 later decisions — most recently January 1928

4 state decisions

20187318801890190019101920decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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By the Court:

¶1The redemption by Sharp was made in his capacity of a judgment debtor, and the statute makes a distinction between a redemption by the judgment debtor and by a creditor holding a lien on the property. Under Section 231 of the Practice Act, “the judgment debtor or redemp*85tioner may redeem the property from the purchaser within six months after the sale, on paying the purchaser the amount of his purchase with twelve per cent, thereon in ad■dition, together with any amount of taxes,” etc. The same section further provides “that if the purchaser be also a creditor, having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made,” he must also pay the amount of such lien. Section 230 defines a redemptioner to be “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 judgment debtor is not a “redemptioner” in the sense in which that term is employed in Section 231. If the judgment debtor redeems, he is required to pay only the purchase money, with twelve percent. thereon, together with taxes, etc.

¶2But if a “redemptioner,” or, in other words, a creditor, holding a subsequent lien on the property redeems, he must also pay to the purchaser any lien he may have prior to that of the redemptioner other than that for which the property was sold. The reason for the distinction made between the judgment debtor and a redemptioner is, that if the latter were permitted to redeem without paying the prior lien held by the purchaser, the title would pass to' the redemptioner and the lien of the purchaser would be defeated. But if the judgment debtor redeem he is restored to his estate, and the lien held by the purchaser will be available. We are therefore of opinion that the redemption by Sharp was effectual, and that it was not incumbent on him to pay off the judgment lien in order to effect the redemption.

¶3Judgment affirmed.

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