Frink v. Murphy

Citations

• 21 Cal. 108

Syllabus

<p>A junior mortgagee, not made a party to a suit for foreclosure of a prior mortgage, has the statutory right of redemption within six months from a sale made under a decree in such suit, and retains also the general equitable right of redemption which exists independent of the statute. If made a party to the foreclosure suit, his equitable right of redemption is barred, but he is still a redemptioner under the statute.</p> <p>Although the decree ascertains the amount of Ms lien and directs its payment out of any surplus proceeds of the sale remaining after satisfaction of the prior lien, his statutory right to redeem is not thereby destroyed, but still exists as to any portion of Ms demand not satisfied by the application of the surplus proceeds of the sale.</p> <p>The phrase, “ on which the property was sold,” occurring in the two hundred and thirtieth section of the Practice Act, refers to the lien which the action was brought to enforce, and does not apply to the liens of subsequent incumbrancers who are made parties.</p> <p>In a suit to foreclose a mortgage, K., a junior mortgagee of the premises, was made a party, and in accordance with the prayer of his answer the decree declared the amount of his lien and ordered the application of any proceeds of the sale remaining after satisfaction of the prior mortgage to be applied to its payment. The premises were sold under the decree to F. for an amount more than sufficient to satisfy the first mortgage, and the surplus was paid to K., hut leaving the larger portion of his claim unsatisfied. This balance was assigned by K. to Gr. & B. who within the six months tendered the Sheriff the amount required by statute to redeem from the sale: Held, that G-. & B. were redemptioncrs under the statute, and that F. was not entitled to the Sheriff’s deed.</p>