Oct. 11, 1862, 293. Confirmation of sale. 20 Or. 150. 5 Or. 212. 7 Or. 370. standing, allow the order confirming the sale, unless on the hearing of the motion it shall satisfactorily appear that there were substantial irregularities in the proceedings concerning the sale, to the probable loss or injury of the party objecting. In the latter case, the court shall disallow the motion, and direct that the property be resold, in whole or in part, as the case may be, as upon an execution received of that date. 3. Upon the return of the execution, the sheriff shall pay the proceeds of the sale to the clerk, who shall then apply the same, or so much thereof as may be necessary, in satisfaction of the judgment. If an order of resale be afterwards made, and the property sell for a greater amount to any person, other than the former purchaser, the clerk shall first repay to such purchaser the amount of his bid, out of the proceeds of the latter sale. 4. Upon a resale, the bid of the purchaser at the former sale shall be deemed to be renewed and continue in force, and no bid shall be taken except for a greater amount. If the motion to confirm be not heard and decided at the term at which it is made, it may be continued and heard and determined before the judge, or at any term thereafter. An order confirming a sale shall be a conclusive determination of the regularity of the proceedings concerning such sale, as to all persons, in any other action, suit, or proceeding whatever. 5. If after the satisfaction of the judgment there be any proceeds of the sale remaining, the clerk shall pay such proceeds to the judgment debtor, or his representative, as the case may be, at any time before the order is made, upon the motion to confirm the sale, provided such party file with the clerk a waiver of all objections made or to be made to the proceedings concerning the sale; but if the sale be confirmed, such proceeds shall be paid to such party of course, otherwise they shall remain in the custody of the clerk until the sale of the property has been disposed of. Confirmation of execution sale. -The confirmation is merely one step in the course of an execution sale. It does not divest title nor dispense with the necessity for execution of a deed: Webster v. Hill, 3 Sneed, 333; Erb v. Erb, 9 Watts & S. 147. The court can only confirm or reject the sale reported; it cannot modify the terms or declare another person the purchaser or best bidder: Kinnear v. Lee, 28 Md. 488; Ohio L. Ins. Co. v. Goodin, 10 Ohio St. 557. The judgment debtor, or his representative in case of his death, is the proper party to object to confirmation of a sheriff's sale: Miller v. Bank of British Columbia, 2 Or. 291. Mere judgment creditors, not parties to the action, cannot appear on a motion for confirmation of an execution sale: Miller v. Oregon C. Mfg. Co., 3 Id. 27. Confirmation should be refused if the statute has not been followed in making the sale, as where the sheriff sold real property without first seeking personal property which was owned by the judgment debtor: Koehler v. Ball, 2 Kan. 160; or where Oct. 11, 1862, notice was not properly given: Rogers 293. v. Ocheltree, 4 Houst. 452; Craig v. Fox, 16 Ohio, 563. The purchaser cannot object to confirmation because of delay unless he protested against such delay: Mayor v. Wick, 15 Ohio St. 548. The officer should retain the proceeds of the sale until it is confirmed: Stone v. Ruffin, 2 Ohio, 503. An order confirming a sale upon execution is a conclusive determination of the regularity of the proceedings concerning the sale as to all persons in any other action, suit, or proceeding: Dolph v. Barney, 5 Or. 191; Wright v. Young, 6 Id. 87; McRae v. Daviner, 8 Id. 63; Willis v. Nicholson, 25 La Ann. 545; Cockey v. Cole, 28 Md. 276. Upon setting aside a sheriff's sale, a resale must be in accordance with this section or it will be insufficient: Trullinger v. Kofoed, 8 Or. 436. The order confirming or rejecting a sheriff's sale is appealable: Dell v. Estes, 10 Or. 359. $294. Eviction of § 297. [294.] If the purchaser of real property sold oct. 11, 1862, on execution, or his successor in interest, be evicted therefrom in consequence of the reversal of the judgment, purchaser. he may recover the price paid, with interest and the costs and disbursements of the suit by which he was evicted, from the plaintiff in the writ of execution. Remedy for eviction. - This provision merely affords a remedy which the common law did not. It does not deal with the question as to when an execution or a sale shall be deemed valid, and when not: Hunt v. Loucks, 38 Cal. 377; Woodcock v. Bennett, 1 Cow. 711; S. C., 13 Am. Dec. 56S. The doctrine formerly prevailed that whenever a sale was made under an erroneous decree or judgment, which was afterwards reversed, the court rendering the judgment having jurisdiction of the person and subjectmatter, the purchaser acquired a good title, notwithstanding the reversal; that doctrine is so far modified that if the plaintiff himself be the purchaser, the former owner, after reversal, may at his election either have the sale set aside and be restored to the possession, or have his action for damages: Reynolds v. Hosmer, 45 Cal. 628; Reynolds v. Harris, 14 Id. 667; S. C., 76 Am. Dec. 459; Johnson v. Lamping, 34 Cal. 293. Where the property was not the property of the defendant, but wholly that of a stranger, the court held it was a sale of property "not subject to execution and sale": Cross v. Zane, 47 Id. 603. $ 295. § 298. [295.] When property liable to an execution Oct. 11, 1862, against several persons is sold thereon, and more than a due proportion of the judgment is levied upon the prop- among joint erty of one of them, or one of them pays without a sale, debtors. Contribution judgment Oct. 11, 1862, $295. Contribution among joint judgment debtors. Oct. 11, 1862, $296. Sale of real property. Redemption. more than his proportion, he may compel contributions from the others; and when a judgment is against several, and is upon an obligation or contract of one of them as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal. In such cases, the person so paying or contributing shall be entitled to the benefit of the judgment to enforce contribution or repayment, if within thirty days after his payment he file with the clerk of the court where the judgment was rendered notice of his payment and claim to contribution or repayment; upon filing such notice, the clerk shall make an entry thereof in the margin of the docket where the judgment is entered. Subrogation. It was held that where plaintiff and Green were jointly liable on a judgment, and Green paid the whole amount, he was entitled to be subrogated to the rights of the plaintiff to the extent of the amount paid by him: Coffee v. Tevis, 17 Cal. 245; Scribner v. Hickok, 4 Johns. Ch. 532. § 299. [296.] Upon a sale of real property, when the estate is less than a leasehold of two years unexpired term, the sale shall be absolute. In all other cases such property shall be subject to redemption, as hereinafter provided in this title. At the time of sale the sheriff shall give to the purchaser a certificate of the sale containing,— 1. A particular description of the property sold; 2. The price bid for each distinct lot or parcel; 3. The whole price paid; 4. When subject to redemption, it shall be so stated. The matters contained in such certificate shall be substantially stated in the sheriff's return of his proceedings upon the writ. Certificate of sale. It has been held that the provision for a certificate of sale is merely directory, and that it will not affect the validity of the sale, or at least against all but purchasers without notice: Jackson v. Young, 5 Cow. 269; S. C., 15 Am. Dec. 473; Barnes v. Kerlinger, 7 Minn. 82. Certificate may be assigned so as to vest in the assignee the right to take the deed in his name: Blount v. Davis, 2 Dev. 19; Splahn v. Gillespie, 17 Ill. 47; Ehleringer v. Moriarity, 10 Iowa, 78. When title vests. -On an execution sale the purchaser acquires the debtor's title at the date of the levy: Fish v. Fowlie, 58 Cal. 373. During the period of redemption the legal title is in the mortgagor: Simpson v. Castle, 52 Id. 644. The purchaser before and after the time for redemption expires has a leviable interest, though the sheriff's deed has not been executed: Page v. Rogers, 31 Id. 301; Duprey v. Moran, 4 Id. 196; Guy v. Middleton, 5 Id. 392; McMillan v. Richards, 9 Id. 412; Smith v. Colvin, 17 Barb. 157; Cummings v. Coe, 10 Cal. 531; People v. Mayhew, 26 Id. 655. The purchaser does not acquire any interest in the judgment on the debt or mortgage upon which the Oct. 11, 1862, judgment was rendered; nor does a § 296. redemptioner, as such, or an assignee of the certificate of sale, even when plaintiff in the suit was the purchaser, acquire any such interest: Abadie v. Lobero, 36 Id. 390. $297. § 300. [297.] Property sold subject to redemption, Oct. 11, 1862, as provided in the last section, or any part thereof separately sold, may be redeemed by the following persons redeem. or their successors in interest: Who may 1. The judgment debtor or his successor in interest 18 Or. 471. in the whole or any part of the property separately sold; 2. A creditor having a lien by judgment, decree, or 12 Or. 433. mortgage on any portion of the property, or any portion of any part thereof, separately sold, subsequent in time to that on which the property was sold. The persons mentioned in subdivision 2 of this section, after having redeemed the property, are to be termed redemptioners. Who may redeem. - Defendant can redeem, notwithstanding he has conveyed to another: Yoakum v. Bower, 51 Cal. 530; Jones v. Planters' Bank, 5 Humph. 619; Livingston v. Arnoux, 56 N. Y. 507. A defendant may redeem after he has been compelled to transfer all his assets to a receiver: Livingston v. Arnoux, supra. A grantec or assignee, or a trustee of absconding or concealed debtor, is a successor in interest in the meaning of this section: Hepburn v. Kerr, 9 Humph. 726; S. C., 51 Am. Dec. 685; Phyfe v. Riley, 15 Wend. 248. Creditors having no mortgage lien, who have not reduced their claims to a certainty by action and judgment, cannot redcem: Woods v. McGavock, 10 Yerg. 133. A creditor of one co-tenant, if he would redeem his debtor's interest, must redeem the whole tract: Eldridge v. Wright, 55 Cal. 531. A judgment creditor may redeem, though his judgment be by confession: Snyder v. Warren, 2 Cow. 518; S. C., 14 Am. Dec. 519. Because one has other adequate securities, he is not therefore prevented from redeeming: Muir v. Leitch, 7 Barb. 341. One creditor may redeem from another: Jackson v. Budd, 7 Cow. 658; Iverson v. Shorter, 9 Ala. 713; People v. Fleming, 2 N. Y. 484. Judgment debtor who pays sheriff the redemption money in time will be deemed to waive the sheriff's act of delivering the deed to the purchaser if the money is after such delivery taken from the sheriff: Wilkins v. Wilson, 51 Cal. 212. This statute is not a substitute for the right to redeem of a junior mortgagee by the general principles of equity. If not made a party to the decree, he is not bound. If made a party, he may redeem before the foreclosure: Tuolumne R. Co. v. Sedgwick, 15 Cal. 529; but not after: Lauriat v. Stratton, 6 Saw. 339. This section applies equally to sales under foreclosure decrees as to others: McMillan v. Richards, 9 Cal. 413. The legal title is in the mortgagor during the period of redemption: Simpson v. Castle, 52 Id. 644. When a subsequent mortgagee can redeem premises from a sale under a judgment upon mechanics' liens: Gamble v. Woll, 15 Cal. 510. A party who has no interest in mortgaged property when the action for foreclosure of the same is commenced, who buys pendente lite, and after notice of pendency of action has been filed, is not a necessary party to a foreclosure suit; see also, for other matters, Horn v. Jones, 28 Id. 194; Oct. 11, 1862, $297. Feb. 25, 1885, $3, p. 116. When lien redeem. see Perkins v. Center, 35 Cal. 713. It The expression "lien on which the a redemptioner, and gives a certificate of redemption, the most that such person can acquire is the interest of the purchaser as purchaser: Abadie v. Lobero, 36 Id.390. Third persons have no right to inquire from what source a redemptioner gets the money: Seale v. Doane, 17 Id. 486. Payment by the debtor extinguishes the purchaser's right, and if he takes a transfer of the certificate, and obtains the sheriff's deed instead of a certificate of redemption, that cannot divest the lien of a subsequent judgment: McCarty v. Christie, 13 Cal. 79. Tender of redemption money is, as to the extinguishment of the purchaser's lien, equivalent to payment: Hershey v. Dennis, 53 Id. 77. § 301. [298.] A lien creditor may redeem the property within sixty days from the date of the order con creditor may firming the sale, by paying the amount of the purchase money, with interest at the rate of ten per centum per annum thereon from the time of sale, together with the amount of any taxes which the purchaser may have paid thereon, and if the purchaser be also a creditor having a lien prior to that of the redemptioner, the amount of such lien, with interest. When lien creditor may redeem. - Redemption can be made only by paying the whole sum bid on any distinct piece sold separately, and not by paying a portion of the bid equal to the interest of the redemptioner in the parcel sold: People v. McEwan, 23 Cal. 57; Hawkins v. Vineyard, 14 Ill. 26; S. C., 56 Am. Dec. 478; and see Quinn v. Kenny, 47 Cal. 150. In Simpson v. Castle, 52 Id. 644, it is determined that a judgment creditor who purchases at an execution sale for a sum less than the amount of the judgment does not have a lien on the land for the residue which the judgment debtor or a redemptioner would have to pay to redeem the land,- thus changing the old rule. A redemption cannot be made, where the land was sold on several judgments, by paying the amount of those judgments which as liens were paramount to his own: Silliman v. Wing, 7 Hill, 159. The redemption must be made in money. Certified checks are not sufficient: Thorne v. San Francisco, 4 Cal. 152; Lyttle v. Etherly, 10 Yerg. 389; but “ legal tenders" are, where the judgment or lien is payable generally in money: People v. Mayhew, 26 Cal. 655. An effort to redeem is ineffectual if any portion of the amount paid is counterfeit money, where there was mutual mistake; but in such case a court of equity will relieve: Pownall v. Hall, 45 Id. 192. The judgment debtor has the whole of the last day in which to redeem: Perham v. Kuper, 61 Cal. 331. The payment is not compulsory, and an excess paid to the sheriff under protest cannot be recovered back from the purchaser, though it may from the sheriff. Interest on the purchaser's bid beyond the two per cent per month caunot be claimed: McMullan v. Vischer, 14 Cal. 240. A judgment creditor for the unpaid portion of a judgment is not a purchaser having a prior lien: Simpson v. Castle, 52 Cal. 644. If the purchaser fails to pay the taxes, permits the premises to be sold, and buys them in, he can derive |