Sharp v. Miller

California Supreme Court

Sharp v. Miller

47 Cal. 82

CourtCalifornia Supreme Court

DecidedJuly 1, 1873

DocketNo. 3,990

StatusPublished

Cited by4 cases

This text of 47 Cal. 82 (Sharp v. Miller) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sharp v. Miller, 47 Cal. 82 (Cal. 1873).

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Opinion

By the Court:

The 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[85]*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.

But 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.

Judgment affirmed.

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By the Court:

The 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[85]*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.

But 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.

Judgment affirmed.

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Bluebook (online)

47 Cal. 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sharp-v-miller-cal-1873.

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