Under the sale of the property in the suit of Garey and Frazer v. Diehl and Barrett, Barrett, by virtue of the unsatisfied balance docketed in his favor, had a lien by judgment or mortgage (in whichever light it may be viewed) on the property sold " subsequent to that on which the property was sold," and was therefore a redemptioner; and no redemption could thereafter be made from him without also paying him the amount of that lien with interest. (Frink v. Murphy , 21 Cal. 108.) There has been no such change in the statute since Frink v. Murphy, as to weaken the effect of that decision. (Pr. Act, secs. 230-2; Code Civil Procedure, secs. 701- 3.) The amendment of 1873-4 to sec. 703 Code Civil Procedure, changes the rule laid down in Sharp v. Miller , 47 Cal. 82.
The homestead of Harriet M. Diehl, filedafter Barrett's mortgage, can cut no figure in this case, for the title derived under the Sheriff's sale relates back to the date of the mortgage. (Horn v. Jones , 28 Cal. 194; Sands v. Pfeiffer , 10 Cal. 258.)
Nor does the alleged assignment of the Barrett mortgage to defendant Dennis cut any figure in this action, for, first, being made pendente lite, the subsequent judgment is conclusive, in this action, of the rights of Barrett; and second, conceding the assignment for the purpose of the argument, respondent Dennis was then the owner of the Barrett lien, and the same payments must be made to him as would have to be made to Barrett. ( Code Civil Procedure, secs. 702, 703.)
JUDGES: Mr. Justice Crocker did not express an opinion in this case.
OPINION By the Court:
Assuming, for the purposes of this case, that Barrett had a lien by virtue of the docketed deficiency arising from the mortgage sale, except for the homestead, it is plain that no such lien could attach after the declaration of homestead.
Barrett, therefore, occupied no such relation to the property or parties as authorized him to redeem from the purchaser at the mortgage sale; and Dennis, the purchaser, acquired no right as redemptioner by reason of a re-assignment from Barrett.
It follows that the mortgagor or his grantee could redeem from Dennis on payment of the amount of his bid and costs, etc. The plaintiff having tendered a sufficient sum to redeem, the Sheriff had no power to execute a conveyance to the defendant Dennis.
Judgment and order reversed, and cause remanded for a new trial.