Frazier v. Crowell

         Who are redemptioners is no longer an open question under the Code. This case is on all fours with and conclusively decided in Sharp v. Miller , 47 Cal. 84, 85.

         OPINION          At the January Term, 1878, in passing upon an application for a rehearing in this case, the Court delivered the following opinion:

         It is true, as claimed in the petition for a rehearing, that the redemption made under the McCracken judgment was made before the taking effect of the Code of Civil Procedure, and that, therefore, the recording of a certified copy of the judgment in the Recorder's office was sufficient to create a lien upon the premises in controversy, and to this extent the opinion heretofore filed must be modified.

         But it is not claimed in the petition that the finding, ninth in number, as follows: " Ninth--That said defendant, Helena Crowell, alias Golinski, has a good and perfect title to said property," (adverted to in the former opinion) is not sufficient in itself to support the judgment for the defendant rendered below.

         The action is ejectment, and the finding just recited is not attacked as being without support in the evidence. The appeal is taken directly from the judgment, and assumes that the findings are correct in point of fact. It is true that the record contains a number of findings, besides the ninth finding just adverted to, but there is no necessary conflict between the ninth finding and the others. The latter concern the various steps taken about the Sheriff's sale, the redemption, etc.; but if it is perfectly consistent with all the findings to assume that the title, " good and perfect ," which the defendant is found to have had at the trial of the action, is the very title which was the subject of the redemption, and which the defendant may have purchased from the plaintiff subsequently to the delivery of the Sheriff's deed on November 20th, 1874, and before the commencement of the action, or possibly, the true title to the premises outstanding at the time of the redemption proceedings, and in the hands of a stranger to these proceedings, and from whom the defendant may have subsequently, and before the commencement of this action, purchased.

         In short, under the established rules of practice prevailing here, the plaintiff cannot, in this condition of the findings, disturb the judgment, except through a proceeding by which the correctness of the findings in point of fact might be inquired into. (Smith v. Acker, ante. )

         We are satisfied with the judgment heretofore rendered, and the petition for a rehearing is denied.