At the time of the levy and sale, Brennus Kenyon had an equitable title to the land, a preemption claim being an equitable interest that can be sold on execution. At any rate, the right acquired by him upon payment for the land, and taking a certificate of purchase, may be sold, as well as taxed. (Pr. Act, Sec. 217; People v. Shearer, 30 Cal. 645; Bludworth v. Lake, 33 Cal. 255.) The Sheriff levied on all the right, legal and equitable, Kenyon had, and that right passed by the Sheriff's deed. At common law, whatever title the debtor had at the levy and sale passed by the deed, because the title passed by the sale, and the deed could be executed at once. The same rule prevails in States where no redemption is allowed by statute. (Starks v. Harrison, 5 Rich. 7; Ernstine v. Sawyer, 2 Wend. 507; see, also, 9 Cowen, 182.) But under our statute the purchaser at Sheriff's sale gets no title till the Sheriff's deed is executed. (9 Cal. 103; 12 Cal. 128; 26 Cal. 655.)
It seems somewhat absurd to hold that when a man pays for the land and gets a certificate of entry, and then his rights are divested by a Sheriff's sale, that, if thenaked legal title comes into the debtor before the time for redemption expires, the same would not pass by the deed.
JUDGES: Crockett, J. Wallace, J., concurring specially.
OPINION
CROCKETT, Judge
Assuming that the preemption claim of Brennus Kenyon was subject to seizure and sale under the defendant's execution (a point not now necessary to be decided), all that the Sheriff could have done, and all that he attempted to do, was to seize and sell such right, title, and interest as Kenyon had in the premises at the time of the levy, and such as he acquired between the time of the levy and sale. At the date of the levy Kenyon had no title to the land, either legal or equitable, not then having paid the purchase money or obtained a certificate of purchase. (Hutton v. Frisbie, 37 Cal. 475.) But after the levy, and before the sale, he paid the purchase money and obtained a certificate of purchase, which vested in him an equitable title, and which entitled him to a conveyance of the legal title by a patent from the Government. Assuming that this equitable title was and could be sold to the defendant under the execution, when he obtained the Sheriff's deed he thereby became invested with the equitable title of Kenyon, and nothing more, this being all that the Sheriff sold, or had the power to sell. But the Sheriff had no power, and did not attempt, to bind Kenyon by any covenant of warranty, seizin, or for further assurance, nor are any such covenants implied by law in the Sheriff's deed. The defendant, by his purchase and the Sheriff's deed, had simply succeeded to the equitable title of Kenyon; and when the latter afterwards obtained the legal title by means of the patent, he held it in trust for the defendant, and could have been compelled to convey it upon a proper application to a Court of equity for that purpose. The defendant, however, claims that under section thirty-three of the Act concerning conveyances, the legal title conveyed by the patent inured to his benefit, and vested in him by operation of law. But that section has no application to a Sheriff's deed made under an execution sale. This section provides that " if any person shall convey any real estate, by conveyance purporting to convey the same in fee simple absolute, and shall not at the time of such conveyance have the legal estate in such real estate, but shall afterwards acquire the same, the legal estate subsequently acquired shall immediately pass to the grantee, and such conveyance shall be valid as if such legal estate had been in the grantor at the time of the conveyance." To bring a conveyance within this section, it must have been made by the party by himself or his duly authorized attorney; but a Sheriff's deed is not made by the judgment debtor, nor does it purport to be a conveyance by him. On the contrary, it is made by an officer of the law having authority to convey the title of the judgment debtor in invitum, and does not, on its face, purport to convey the fee, but only such right, title, or interest as the judgment debtor had. The section above quoted has no application to such a conveyance. It results, from these views, that the defendant acquired, if anything, only an equity in the land by the Sheriff's deed, and that the legal title conveyed by the patent did not pass to the defendant; and if he desired to avail himself of his equitable title as a defense to this action, he should have pleaded it, and asked the appropriate relief. Not having done so, he was not entitled to give it in evidence, under the answer as it now stands.
I deem it unnecessary to express an opinion on the other points presented on the appeal.
Judgment reversed, and cause remanded for a new trial, with leave to the defendant to amend his answer if he shall elect to do so.
CONCUR
WALLACE
Wallace, J., concurring specially:
I concur in the judgment.