Ritter v. Salsbery

• Decision Date: 18 May 1956
• Citation: 142 Cal.App.2d Supp. 847,298 P.2d 166
• Court: California Superior Court
• Parties: 142 Cal.App.2d Supp. 847 Tex RITTER, Plaintiff and Appellant, v. Winston N. SALSBERY et ux., Defendants and Respondents. C. A. 8999. Appellate Department, Superior Court, Los Angeles County, California

Page 166

298 P.2d 166

142 Cal.App.2d Supp. 847

Tex RITTER, Plaintiff and Appellant, v. Winston N. SALSBERY et ux., Defendants and Respondents.

C. A. 8999.

Appellate Department, Superior Court, Los Angeles County, California.

May 18, 1956.

Order Denying Rehearing June 8, 1956.

Kenneth D. Holland, Monrovia, for appellant.

Edward H. Blixt, Los Angeles, for respondent.

PATROSSO, Judge.

Plaintiff appeals from a judgment of nonsuit in an action of unlawful detainer instituted by him pursuant to section 116a(1) of the Code of Civil Procedure. The facts are not in dispute and may be briefly stated.

Pursuant to a writ of execution issued upon a judgment obtained against defendants herein in the Municipal Court of the Los Angeles Judicial District, wherein Customcraft Sheet Metal Products, Inc. was plaintiff, the Sheriff of Los Angeles County, on May 4, 1954, sold the property here involved to parties named, Nishimine, Curtright and Sevilla, and issued to them his certificate of sale therefor. Subsequently thereto and prior to the expiration of the period of redemption from the foregoing execution sale, plaintiff obtained judgments against defendants, upon which, at the time of plaintiff's redemption from the previous sale presently to be noted, there was due $1,827.51. Abstracts of said judgments were duly recorded prior to April 27, 1955, at which time plaintiff paid to the Sheriff the requisite amount to effect a redemption from the sale to Nishimine, Curtright and Sevilla, and thereafter on October 19, 1955, the Sheriff issued to plaintiff, his certificate of redemption which was duly recorded on November 2, 1955. On May 2, 1955, defendants paid to the Sheriff the sum of $61.81 for the purported purpose of effecting a redemption from the plaintiff, the defendants contending then, as they do now, that they were entitled to redeem from plaintiff without payment of his judgment, by virtue of which he redeemed from the purchasers at execution sale. Thereafter, following the expiration of the period of redemption, and on November 7, 1955, plaintiff instituted the present action in unlawful detainer, seeking possession of the property in question. Other salient facts will appear in connection with the discussion of the various contentions of the respective parties.

Defendants advance various reasons in support of the judgment of nonsuit which we shall proceed to consider seriatim.

1. Defendants first contend (although this does not clearly appear to have been one of the grounds of their motion for nonsuit) that plaintiff's redemption from the sale under execution was ineffectual because plaintiff was not entitled to redeem by virtue of his judgment against the defendants. The argument is that, inasmuch as plaintiff did not obtain his judgment until after the property was sold under execution in the prior action, he acquired no lien thereon and hence he did not qualify as a redemptioner under C.C.P. section 701 (2). The argument requires no extensive discussion as it is conclusively answered and disposed of adversely to defendants by the recent case of Clark v. Cuin, 1956, 46 Cal.2d 386, 295 P.2d 401.

Defendants next contend that plaintiff's redemption was ineffectual in that plaintiff did not record notice of redemption as is required (so defendants say) by C.C.P. section 703. A proper understanding of this contention requires an amplification of the statement of facts appearing in an earlier part of this opinion. When plaintiff redeemed from the purchasers at execution sale, he delivered to the Sheriff the following: (1) written notice of intention to redeem; (2) certified copies of the judgments in favor of plaintiff against defendants; (3) affidavit showing the amount actually due under his judgment lien; and (4) cash in the sum of $60.00, representing the amount for which the property was sold to the purchasers at execution sale, together with accured interest and a redemption fee of $2.90. There is no contention that the amount paid by plaintiff to the Sheriff was not the requisite amount required to effect a redemption in accordance with C.C.P. section 702. It is also clear that the documents then delivered to the Sheriff constituted all that are required by C.C.P. section 705. The controversy here, therefore, revolves about the proper construction to be accorded to the fourth paragraph of section 703, which reads as follows: 'Written notice of redemption must be given to the sheriff and q duplicate filed with the recorder of the county, and if any taxes or assessments are paid by the redemptioner, or if any sum for fire insurance, maintenance, upkeep, or repair of any improvement upon the property, is paid by the redemptioner, or if he has or acquires any lien other than that upon which the redemption was made, notice thereof must in like manner be given to the sheriff and filed with the recorder; and if such notice be not filed, the property may be redeemed without paying such tax, as sessment, sum, or lien.'

Just what is meant by the words, 'Written notice of redemption' as used in the foregoing provision is not entirely clear. It would not appear to refer to the 'notice' mentioned in section 705, which is a notice by one entitled to redeem, manifesting his purpose and notifying the Sheriff making the sale of his desire to exercise his right of redemption, which must be accompanied (if he be a judgment creditor) with a certified copy of the judgment 'under which he claims the right to redeem,' and an affidavit 'showing the amount then actually due on the lien.' The 'Written notice of redemption' mentioned in section 703, on the other hand, would appear to have reference to a notice to be given subsequent to the time that redemption is effected, for it speaks of 'taxes or assessments paid by the redemptioner' and of sums paid by him (the redemption) 'for fire insurance, maintainance, upkeep, or repair of any improvement upon the property' as well as any 'lien other than that upon which the redemption was made' which 'he has or acquires', and is apparently designed to give notice to the Sheriff and others entitled to redeem of any sum expended by the redemptioner for the purposes stated and any lien held by him other than that upon which the redemption was made, in order that the Sheriff, as well as others entitled to redeem from the redemptioner, may be informed of the amount which will be required to be paid to effect a redemption, in addition to any amount which was required to be paid by him to effect a redemption from the purchaser at execution sale or from a previous redemptioner having a superior lien to his own. That this is the proper construction to be accorded to the provision is fortified by the final clause: 'if such notice be not filed, the property may be redeemed without paying such tax, assessment, sum, or lien ('other than that upon which the redemption was made').' This latter clause is also to be read in the light of the first paragraph of the section 703, which specifies the amount required to be paid by a subsequent redemptioner which, in addition to the sum paid by the last redemptioner, with 2% interest thereon, includes 'the amount of any assessment or taxes * * * fire insurance, maintenance, upkeep, or repair of any improvements * * * which the last redemptioner may...