Alexander v. Otis.Greenwood

Citations

• 24 Cal. 505

Syllabus

<p>Mortgagee—Subsequent Lienholders.—The mortgagee of real estate cannot, by virtue of the lien of his mortgage alone, cut off the judgment creditors of the mortgagor who have, by virtue of their judgments, acquired a lien on the mortgaged property subsequent to the mortgage, from all recourse upon the mortgaged property.</p> <p>Foreclosure of Mortgage—Parties to.—A judgment creditor whose judgment lien is subject to the lien of a prior mortgage is not concluded nor are his rights affected by a decree of foreclosure of the mortgage unless he was a party thereto.</p> <p>Sale of Mortgaged Property by Judgment Creditor—Effect of.—After the execution of a mortgage upon real estate, a judgment was rendered against the mortgagor, which became a lien upon the mortgaged property; the mortgagee then foreclosed the mortgage, making the mortgagor alone a party defendant, had the mortgaged property sold under the decree, became the purchaser, and obtained a Sheriff's deed; afterwards, the judgment creditor procured an execution upon his judgment, and had the property advertised for sale; the holder of the title under the Sheriff's deed filed a bill in equity to enjoin the sale; held, that he was not entitled to an injunction, and that the judgment creditor had a right to sell any interest in the land held by the judgment debtor at the rendition of the judgment or levy of the execution. Held, further, that the judgment creditor’s equitable right of redemption not having been cut off by the foreclosure, he might, during the two years that his judgment was a lien upon the premises, sell under an execution, and purchase the legal title of the mortgagor, not only that he might assert his right of redemption at any time within the period allowed by the Statute of Limitations, but, also, that he might realize any other benefit or advantage that might accrue to him from the sale.</p>