ROWLAND v. BARTHEL

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District Court of Appeal, Third District, California.

ROWLAND v. BARTHEL et al.*

Civ. 8232.

Decided: November 09, 1953

James S. Eddy, Sacramento, for appellant. Robert M. Cole, Davis, for respondents.

This is an appeal from a judgment and order sustaining defendants' demurrer to plaintiff's complaint without leave to amend.

By his action plaintiff sought to compel redemption and to quiet title to certain real property in Yolo County. Specifically he alleged the entry of a judgment in the Superior Court of that county against his assignors providing that the property in question be sold as the property of said assignors in the manner provided by law for sales of real property pursuant to execution; that said judgment created in said assignors an equitable interest in said property and the right to redeem the same; that the property was so sold by the sheriff of said county as the property of plaintiff's assignors; that prior to the expiration of the period provided by law for redemption of sales of real property upon execution, the sheriff of said county wrongfully made and delivered to the defendants a deed thereto; that said deed now constitutes a cloud upon plaintiff's title; that the property is improved; that defendants have spent unknown sums in the maintenance, upkeep and repair thereof; that plaintiff has demanded a verified statement of the amounts of rents and profits thereof but that defendants have refused to give any such statement. It was further alleged that the defendant Bank of Davis claims an interest in said property adverse to plaintiff by virtue of a deed of trust. In his prayer plaintiff sought an order declaring his right to redeem the property; for an accounting from the defendants of the rents and profits as well as the expenses, and for an order directing the defendants to convey title to plaintiff. Defendants demurred, both generally and specifically to said complaint. As shown by its memorandum opinion the trial court, in sustaining defendants' demurrer, took judicial notice of the prior action and based its order on that portion of the decree in that action wherein it was held that the vendees [the assignors of plaintiff herein] ‘or any person acting by or through them * * * are hereby enjoined and debarred from asserting any such claim or demand which arose prior to date of Judgment herein, and all equity of redemption of any of the aforesaid persons is hereby foreclosed.’ In conclusion, the trial court stated that plaintiff herein, ‘has no equity of redemption, and that it is impossible for him to state a cause of action which will enable him to redeem the real property.’

Appellant now makes two main contentions: (1) That the trial court improperly took judicial notice of the former action, and (2) that even though it may have properly taken such judicial notice the court was in error in concluding that the plaintiff redemptioner herein has no right to redeem.

The Supreme Court held in Wolfsen v. Hathaway, 32 Cal.2d 632, 638, 198 P.2d 1, 5, that ‘It is the general rule that ‘the court will not take judicial notice of other actions, not even those pending or concluded in the same court.’' But the court said in City of Los Angeles v. Abbott, 217 Cal. 184, 193, 17 P.2d 993, 995: ‘The rule precluding the court from taking judicial notice of its judgment in another case is not an inflexible one, and has several exceptions.’ And, in referring to an exception noted in a case cited therein, said: ‘The fact that such an exception exists indicates that the rule is not based on lack of power but is a rule of expediency, to be applied or refused application as the equities and justice of the cases require.’ Again, the same court said in Willson v. Security-First National Bank, 21 Cal.2d 705, at page 711, 134 P.2d 800, 804, ‘judicial notice will be taken of proceedings in other cases in the same court in the interests of justice.’ Examining the allegations of plaintiff's complaint in light of the rule and exceptions thereto as enunciated in the cases cited we cannot say that the trial court erred in taking judicial notice of the prior proceeding. Here plaintiff pleaded the legal effect of prior judgment; that it involved title to certain real property; that it called for a judicial sale of that property and created in his assignor an equitable interest, that is, a right of redemption. He further alleged his attempts to redeem and set out verbatim the assignment given to him by the original vendees. He alleged the fact of the sale which resulted from that judgment, and that prior to the time for redemption the sheriff wrongfully made and delivered a deed to the property.

If the right of redemption may be so foreclosed and a deed issued forthwith, then the order sustaining the demurrer was proper. However, if the right continues during the redemption period and if the acts of the sheriff were without sanction in law, then the sustaining of the demurrer was improper and the judgment entered pursuant thereto must be reversed. Therefore it would appear that the fundamental question is not whether the court could take judicial notice of the prior case but whether or not plaintiff or his assignors could be deprived of their right of redemption under the allegations of the complaint.

The parties are in agreement that the sale herein was a judicial sale and not a sale under execution. Appellant contends that California statutes have established the policy that all judicial sales of real property are conditioned by a right of redemption and confirmation by the court. Respondent to the contrary argues that a judicial sale gives no such right.

As a general rule redemption is purely a statutory privilege but being remedial in character, statutes giving such right should be construed liberally in favor of the right. Or, as stated in Lobingier v. Skinner, 93 Cal.App. 695, 270 P. 394, 396, ‘rights of redemption are favored in law.’ There is substance in the argument of plaintiff that the policy of this state is that all judicial sales of real property contain the right of redemption. In the early case of Sparks v. Hess, 15 Cal. 186, where the contract of sale was executed and title remained in the vendor, the decree of foreclosure provided for judicial sale, and the court, noting that a mortgage was a form of conveyance of title though intended only as security for a debt, observed that in a vendors' lien ‘the title is retained by the vendors for a similar purpose of security.’ Again, in the later case of Gessner v. Palmateer, 89 Cal. 89, 24 P. 608, 26 P. 789, 790, 13 L.R.A. 187, in discussing the difference between a vendor who has parted with the title but taken no security for the purchase price and the vendor who retains title under an unexecuted contract of sale, the court said: ‘Where the title is not to pass until the vendee pays the purchase price, the land is by express contract held in pledge for such payment, and the notes and contract may be considered as an instrument in the nature of a mortgage. It is a lien by contract, is an incident to the debt * * *.’ See also Tilley v. Bonney, 123 Cal. 118 55 P. 798, and Brown v. Kahn, 176 Cal. 159, 167 P. 869.

It would therefore appear that in an action brought by the vendor who retains title and where judicial sale of the property is ordered, the statutory right of redemption would attach, since the vendor's interest being fundamentally one of security must be treated the same as if that secured interest was represented by a specific instrument of mortgage. It necessarily follows that since the right of redemption exists and attempt to bar that right is void. Thus, where a sheriff's or Commissioner's deed has been delivered before the period of redemption has expired, it is void. Bessinger v. Grotz, 66 Cal.App.2d 947, 153 P.2d 369. Likewise any attempt to bar redemption by decree providing for immediate delivery of the deed following sale has also been held to be void. In considering this question the Supreme Court in Anthony v. Janssen, 183 Cal. 329, 191 P. 538, 541, said that ‘With respect to the sheriff's deed, it is sufficient to say, in anticipation of a new trial, that the sheriff was without lawful power at that time to execute a conveyance of the property, or to do anything in consummation of the sale, except to execute to the purchaser a certificate of sale as provided in the Code. Code Civ.Proc., § 700a. The property was real estate and the sale was made subject to redemption. Code Civ.Proc. §§ 700a–702. The sheriff's power to convey did not accrue until there had been a failure to redeem within the time fixed. Code Civ.Proc. § 703. The direction in the decree that the deed should be made immediately after the sale was contrary to the Code, and beyond the power of the court. It was therefore void.’ To the same effect see also Vasquez v. Vasquez, 109 Cal.App.2d 280, 240 P.2d 319.

Even though the Anthony case involved a suit to foreclose a materialmen's lien, the code sections dealing with sales after execution were applied and we see no valid reason for a different application thereby effecting a contrary result in the present case.

In view of what has heretofore been said it appears unnecessary to consider the additional matters discussed by the parties.

The judgment is reversed.

PEEK, Justice.

VAN DYKE, P. J., and SCHOTTKY, J., concur.

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