1. A sale under execution, of land in which the parties to the judgment had no estate or interest whatever, and which had been bid in by the plaintiff under a misapprehension of the fact, should notbe considered as payment of the judgment to the extent of such bid; and the plaintiff has a well established remedy by suit in equity. (Schumerhorn v. Baryhydt, 9 Paige, 28-40; Meyer v. Craig, 3 Blackf. Ind. 295; Slocum v. Freeman, 6 Abbott Pr. N. S. 443; Lansing v. Quackenbush, 5 Cowen, 38; Rorer on Judicial Sales, p. 302, sec. 903.)
2. This equitable relief has been granted in analogous cases of mistake. (Russell v. Mixer , 42 Cal. 475; Pownall v. Hall , 45 Cal. 189.)
3. Relief in such cases may be granted either by suit in equity or by special motion. (Schumerhorn v. Baryhydt, 9 Paige, 40; Mulks v. Allen, 12 Wend. 253; Rorer on Judicial Sales, p. 303, sec. 905.)
4. The Code recognizes the plaintiff's right to a summary remedy; but the remedy there given is cumulative, and not exclusive. ( Code of Civil Procedure, sec. 708; Cross v. Zane , 47 Cal. 602.)
5. A judgment revived on motion under sec. 708, Code of Civil Procedure, " has the same force and effect as would the original judgment of the date of the revival." The defendant, then, was not injured by the plaintiff choosing a less summary remedy.
JUDGES: Rhodes, J.
OPINION
RHODES, Judge
The plaintiff having recovered a judgment against the defendant for a sum of money, and having caused an execution to be issued, which was afterwards levied upon a tract of land as the property of the defendant, purchased the land for the sum of one thousand five hundred dollars, and that sum was credited upon the execution; but the defendant, as is alleged in the complaint, had no right, title, or interest in the land, nor the possession thereof, although there appeared of record a deed of conveyance purporting to grant the land to him. The plaintiff delivered to the defendant a conveyance of all the right, title, and interest acquired by his purchase at such sale, and demanded that the amount bid for the land be returned to him, or that the credit on the execution be cancelled. The defendant retains the deed of conveyance delivered to him by the plaintiff. The action is an action in equity, to set aside the credit on the execution, and have the original judgment revived for the sum so credited on the execution.
Cross v. Zane , 47 Cal. 602, was a suit in equity to revive the judgment under circumstances quite similar to those in this case, and objection was taken in that case, as in this, to the effect that proceedings by motion was the only remedy; but this Court reversed the judgment of the Court below, rendered upon the order sustaining the demurrer to the complaint. Upon the authority of that case we hold that the demurrer was properly overruled, and that the plaintiff was entitled to judgment upon the admission by the defendant of the facts alleged in the complaint.
Judgment affirmed.