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$ 234. What must a redemptioner do in order to redeem.
A redemptioner shall produce to the officer or person from whom he seeks to redeem, and serve with his notice to the Sheriff:
1st. A copy of the docket of the judgment under which he claims the right to redeem, certified by the Clerk of the Court, or of the county where the judgment is docketed; or if he redeem upon a mortgage or other lien, a note of the record thereof certified by the recorder.
2d. A copy of any assignment necessary to establish his claim, verified by the affidavit of himself, or of a subscribing witness thereto; and
3d. An affidavit by himself, or his agent, showing the amount then actually due on the lien.
1. If a party claim a Sheriff's deed, as having redeemed property as successor in interest of the judgment debtor, his offer to redeem must have been made in that character. Haskell v. Manlove, 14 Cal. 54. • 2. To entitle a judgment creditor having a lien to redeem, he must serve upon the officer a copy of the docket of the judgment. A copy of the judgment is not sufficient. Id.
3. A certificate of the Sheriff of the purchase of property as that of the defendant in execution is not sufficient to enable the holder to redeem as such successor; at least, not until the expiration of the six months. Id.
4. An assignee of a judgment and of the Sheriff's certificate of a sale thereunder stands in the same position as his assignor, the plaintiff, after the judgment has been reversed; and the sale will be set aside and the property restored to the defendant, where no loss or injury will be done the assignee." Reynolds v. Harris, 14 Cal. 667.
5. Otherwise, as to a stranger, a bona fide purchaser without notice. He is not within the rule. But to constitute himself such a purchaser, he must show that he has paid the purchase money, and also that he is the purchaser of the legal title, not of a mere equity. And a purchaser at execution sale is not clothed with the legal title until he receives a Sheriff's deed. Id.
$ 235. Until the expiration of redemption time, Court may restrain waste on the property; what shall be considered waste.
Until the expiration of the time allowed for redemption, the Court may restrain the commission of waste on the property, by order granted with or without notice, on the application of the purchaser or the judgment creditor. But it shall not be deemed waste for the person in possession of the property at the time of sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used; or to use in the ordinary course of husbandry; or to make the necessary repairs of buildings thereon; or to use wood or timber on the property therefor; or for the repair of fences; or for fuel in his family while he occupies the property.
§ 236. Rents and profits, who is to receive.
The purchaser, from the time of the sale until a redemption, and a redemptioner, from the time of his redemption until another redemption, shall be entitled to receive from the tenant in possession the rents of the property sold, or the value of the use and occupation thereof.
1. The purchaser at Sheriff's 'sale of a "water ditch," is entitled to the rents and profits thereof from the date of the sale till the expiration of the time for redemption, as well from the judgment debtor in possession as from his tenant. Harris v. Reynolds, 13 Cal. 514.
2. The words "tenant in possession," in section two hundred and thirty-six of the Practice Act, embrace the judgment debtor, as well as his lessee. Id.
3. Where the owner of mortgaged premises leases the same for a term of years, and the rent is paid in advance by the tenant: Held, that the purchaser, under the mortgage sale, can require the tenant to pay the rent over again to him. McDewitt v. Sullivan, 8 Cal. 592.
4. A party in possession of premises under Sheriff's sale, and receiving rents and profits during the time for redemption, should, in equity, as between him and defendant in execution, pay the taxes assessed while he is so in possession. If the owner does not pay them, then the statute requires the party in possession to pay. Kelsey v. Abbott, 13 Cal. 609.
5. If, in such case, such party fails to pay the tax, permits the premises to be sold, and buys them in, he can derive no benefit from the sale; except that, in equity, the amount paid would probably be considered an advance to the judgment debtor. And this, though the premises were bid in by one of two partners, while the possession, under the Sheriff's sale, was by both partners. The duty to pay the tax was several as well as joint. Id.
6. A purchaser of land at Sheriff's sale can maintain an action for rent against the tenant in possession under the judgment debtor, before the expiration of the six months allowed for redemption, and as often as the rent becomes due under the terms of the lease existing when he purchased. Reynolds v. Lathrop, 7 Cal. 43.
7. The sale operates as an assignment of the lease for the time. Id.
8. As to whether the words “tenant in possession" would include the judgment debtor, in a case where he was in possession at the time of the sale, so as to make him responsible for use and occupation-query? Id.
9. At a Sheriff's sale of the premises on a foreclosure suit by plaintiff against R., plaintiff became the purchaser. During the six months succeeding the sale, C., acting as agent of defendants, occupied the premises, carrying on the business of a saloon. At the end of the six months, defendants, as mortgagees, redeemed: Held, that the defendants are tenants in possession within the two hundred and thirty-sixth section of the Practice Act, and must pay the plaintiff for use and occupation for the six months. Knight v. Truett, 18 Cål. 113.
10. A judgment debtor who redeemed his property within twenty-one days after the Sheriff's sale, but who had received from his
tenants in possession four hundred and forty-five dollars rent between the day of sale and the redemption: Held, liable to the purchaser at the sale for the amount so received. Klinn v. Chase, 17 Cal. 596.
11. The section of the act allowing to the purchaser the value of the use and occupation affords the only remedy the purchaser is entitled to. Guy v. Middleton, 5 Cal. 392.
$ 237. If purchaser of real property be evicted for irregularities in the sale, what he may recover and from whom. When judgment to be revived. Petition for the purpose how and by whom made.
[1860.) If the purchaser of real property, sold on execution, or his successor in interest, be evicted therefrom in
of irregularities in the proceedings concerning the sale, or of the reversal or discharge of the judgment, he may recover the price paid, with interest, from the judgment creditor. If the purchaser of property at Sheriff's sale, or his successor in interest, fail to recover possession in consequence of irregularity in the proceedings concerning the sale, or because the property sold was not subject to execution and sale, the Court having jurisdiction thereof shall, on petition of such party in interest, or his attorney, revive the original judgment for the amount paid by such purchaser at the sale, with interest thereon, from the time of payment, at the same rate that the original judgment bore; and when so revived, the said judgment shall have the same effect as an original judgment of the said Court of that date, and bearing interest as aforesaid, and any other or afteracquired property, rents, issues or profits of the said debtor, shall be liable to levy and sale under execution in satisfaction of such debt; provided, that no property of such debtor sold bona fide before the filing of such petition shall be subject to the lien of said judgment; and provided further, that notice of the filing of such petition shall be made by filing a notice thereof in the Recorder's office of the county where such property may be situated ; and that said judgment shall be revived in the name of the original plaintiff or plaintiffs, for the use of said petitioner, the party in interest J. P.
CHAPTER II.—Proceedings supplementary to execution. Sec. 238. When execution returned unsatisfied, judgment cred
itor may compel judgment debtor to appear before a Judge and answer concerning his property ;
debtor not to go out of his county. 239. Proceedings to compel debtor to appear; in what
cases he may be arrested ; what bail may be given. 240. Any debtor of the judgment debtor may pay the
latter's creditor. 241. Examination of debtors of judgment debtor, or of
those having property belonging to him. 242. Witness required to testify. 243. Judge may order property to be applied on execution. 244. Proceedings upon claim of another party to property,
or on denial of indebtedness to judgment debtor. 245. Disobedience of order, how punished.
$ 238. When execution returned unsatisfied, judgment creditor may compel judgment debtor to appear before a Judge and answer concerning his property ; debtor not to go out of the county.
When an execution against property of the judgment debtor, or of any of several debtors in the same judgment, issued to the Sheriff of the county where he resides—or if he does not reside in this State, to the Sheriff of the county where the judgment roll is filed—is returned unsatisfied in whole or in part, the judgment creditor, at any time after such return is made, shall be entitled to an order from the Judge of the Court or a County Judge, requiring such judgment debtor to appear and answer concerning his property, before such Judge, or a referee appointed by him, at a time and place specified in the order; but no judgment debtor shall be required to attend before a Judge or referee out of the county in which he resides, when proceedings are taken under the provisions of this chapter.
N. Y. Code, ý 292. J. P. 1. Edwards on Referees, 158, et seq.; and Edwards on Receivers in Equity, 366,
2. These proceedings are a substitute for a creditor's bill in the old practice. Adams v. Hackett, 7 Cal. 187.
3. The fact that a referee in the proceedings supplementary to execution was the clerk of the attaching creditor is not any considerable evidence of fraud, when the limited duties of the referee are considered. Id.
4. As soon as proceedings supplementary to execution were instituted before the District Court, it obtained jurisdiction over the case, and had authority to proceed and apply the property of the judgment debtor to the satisfaction of the judgment of the plaintiffs. Id.
5. The obvious purpose of the provisions of the Code, respecting supplementary proceedings, (9$ 294-299) is to give the creditor an immediate and summary remedy against the debtor's property ; but not to permit the rights of third parties to be brought into litigation, except in a regular way, by suit. (Goodyear v. Betts, 7 How. Pr. R. 187; The People v. King, 9 Id. 97, 100; Gasper v. Bennett, 12 Id. 307.) To sustain an order that he apply property in his possession to the judgment, it is not enough that he has it in possession. It must appear to be his property.
If the contrary appears, the remedy to test the title is, for the receiver to bring action for the property. Rodman v. Henry, 17 N. Y. (3 E. P. Smith's) R. 482.
6. Before the supplementary proceedings can be instituted, the creditor's remedy by execution must be really exhausted. Nagle v. James, 7 Abb. Pr. 234.
7. Where the Sheriff makes return of an execution before the expiration of the sixty days, at the request of the plaintiff or his attorney, such return is to be regarded as the act of the party, and not the official act of the Sheriff, and supplementary proceedings founded upon such a return will be set aside, on application of the judgment debtor. Spencer v. Cayler, 9 Abb. Pr. 382.
8. But where the return is made by the officer of his own motion, and in good faith, it is no objection that it was made within the sixty days. Farquaharson v. Kimball, 9 Abb. Pr. 385, note.
9. The fact that a second execution, which has been issued since the return of that on which the proceedings are founded, has not been returned, does not affect the proceedings. Id.
10. The proceedings taken on the return of the first execution are not superceded by an insufficient levy under the second. Id.
§ 239. Proceedings to compel debtor to appear ; in what cases he may
be arrested ; what bail may be given. [1854.] After the issuing an execution against property, and upon proof by affidavit of a party or otherwise, to the satisfaction of the Court or of a Judge thereof, or County Judge, that any judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment, such Court or Judge may, by an order, require the judgment debtor to appear at a specified time and place before such Judge, or a referee appointed by him, to answer concerning the same ; and such proceedings may thereupon be had for the application of the property of the judgment debtor toward the satisfaction of the judgment, as are provided upon the return of an execution. Instead of the order requiring the attendance of the judgment debtor, the Judge may, upon affidavit of the judgment creditor, his agent or attorney, if it appear to him that there is danger of the debtor absconding, order the Sheriff to arrest the debtor and bring him before such Judge. Upon being brought before the Judge, he may be ordered to enter into an undertaking, with sufficient surety, that he will attend from time to time before the Judge or referee, as shall be directed, during the pendency of proceedings, and until the final determination thereof, and will not in the meantime dispose of any portion of his property not exempt from execution. In default of entering into such undertaking, he may be committed to prison.
See N. Y. Code, 292. J. P.
1. A commitment for contempt, for refusing to obey an order of Court commanding the imprisonment of the party in contempt, until he shall comply with the