Levy v. Burkle

14 P. 564, 2 Cal. Unrep. 778, 1887 Cal. LEXIS 843

• Court: California Supreme Court
• Decided: July 27, 1887
• Docket: No. 11,967
• Status: Published

Opinion

THORNTON, J.

The demurrer to the answer of defendant Elizabeth Burkle was properly sustained. We are of opinion that there is error in the judgment in the direction for the sale of the property without the right of redemption. The right to redeem is given by statute, and the defendant cannot be deprived of it by the court. It makes no difference that the security here involved is a deed of trust. It was held at an early day in Kent v. Laffan, 2 Cal. 595, and ever since, that the statutory redemption applied to a sale on foreclosure of a mortgage. ■ If it applies to a mortgage, it as well applies to a deed of trust. Both are securities only. The difference is only in form. In one case the mortgagee is the trustee; in the other a third person.

The judgment is ordered to be modified in the court below by striking out the direction for the sale without the right of redemption, and when so modified will stand affirmed. Ordered accordingly.

We concur: McFarland, J.; Sharpstein, J.