Whitney v. Higgins

Citations

• 10 Cal. 547

Syllabus

<p>A decree for the sale of premises in a suit to enforce a mechanic’s lien, has the same and no greater effect upon the rights of purchasers and incumbrancers, prior to the commencement of the suit, than a similar decree would have upon the foreclosure of a mortgage. If such purchasers or incumbrancers are not made parties, they are not bound by the decree or the proceedings thereunder.</p> <p>All persons interested in the premises, prior to the suit brought to foreclose a mortgage or to enforce a mechanic’s lien, whether purchasers, heirs, devisees, remainder-men, reversioners, or incumbrancers, must be made parties, otherwise their rights will not bo affected.</p> <p>Persons who acquire interests by conveyance or incumbrance after suit brought, need not be made parties.</p> <p>The right to redeem, under the statute, from a sale on execution, exists in some instances 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. Parties acquiring interests, pending suits to enforce previously existing liens, or after judgment docketed or sale made, have no equity, and are confined to the rights given by the statute; but parties obtaining interests, subsequent to the plaintiff, and before suit brought, who are not made parties in such suit, possess the equitable and the statutory right. They may redeem, under the statute, or they may file their bill in equity.</p> <p>Where a mechanie’s lien attached on certain premises January 18th, 1856, and a mortgage was placed on the same premises February 21st, 1856, and a suit was brought, subsequent to the execution and record of the mortgage, to enforce the mechanic’s lien, in which suit the mortgagees were not made parties, and under the decree rendered in such suit, a sale was made, and after the expiration of six months, no redemption being had, a deed was execu