Heyland v. Badger , 35 Cal. 404 ( 1868 )

Crockett, J., concurring specially:

I concur in the judgment.

Mr. Justice Sanderson expressed no opinion.

By the Court, Sawyer, C. J., on petition for rehearing :

We clo not find anything in the petition for rehearing that was not substantially presented in appellant’s briefs on the former hearing. Appellant evidently misapprehends our opinion. We did not express our views as to whether there was a default on the part of Heyland, but held that appellant could not recover in the action brought, whether there was, or was not, a .default. We have held nothing in conflict with the authorities cited by him. Some of them were cited by us. The case in 8 Denio, 33, (Charter v. Stevens,) was where the specific articles involved in the suit were sold after enough had already been sold to pay off the- mortgage, and the mortgage was, therefore, satisfied, and the remainder of the property thereby revested in the mortgagor. The mortgagee was not satisfied to keep the property under his mortgage title, but he went on to collect the money, and when he had collected enough to satisfy the mortgage, the mortgage itself was satisfied, and the decision is put upon that ground. It ■ was held that this was equivalent to absolute payment, and that the mortgagee’s title to the chattels remaining unsold was extinguished. The case is against petitioner, and indicates the true remedy. The case of Kater v. Steinruck’s Administrator, 40 Pa. 501, turned upon peculiar statutory provisions.

We only consider the title at law. We admitted an equity of redemption, and held only that appellant’s remedy was in equity to redeem. There is no doubt, that to cut off this equity of redemption, a sale must be made on due notice. Had the sale been regular upon due notice given, all rights, both legal and equitable, would have been cut off. The complaint in this case presents the case only in a legal aspect, and in that aspect only did we determine it. The action purports to be an action to recover damages for the wrongful sale of the hay, and it was evidently tried on that theory. There was no tender of the amount due, no account, or redemption sought. It does not purport to be, and was not tried on the theory that it was an equitable suit for a redemption. The case of Wilkins’ Executors v. Sears, 4 Mon. 344, cited by appellant, was an action in equity to redeem, and it recognizes no other, without first tendering the amount due.

Rehearing denied.

Neither Mr. Justice Rhodes nor Mr. Justice Sandersoh expressed an opinion.