on, without the written consent of such purchaser, his representatives or assigns, is guilty of larceny and shall be punished accordingly.14

Subdivision 3. The Redemption.

171. Persons Entitled to Redeem.15

Subject to the conditions hereinafter provided, the person who owned the property interest sold

14 See Pen. Code, sec. 5022, new section, in effect March 26, 1895.

15 Persons Entitled to Redeem, in General.-Code of Civil Procedure, section 701 (Practice Act, section 230), provides: "Property sold subject to redemption, as provided in the last section, or any part sold separately, may be redeemed in the manner hereinafter provided by the following persons, or their successors in interest:

(1) the judgment debtor, or his successor in interest, in the whole or any part of the property; (2) a creditor having a lien by judgment or mortgage on the property sold, or on some share or part thereof, subsequent to that on which the property was sold. The persons mentioned in the second subdivision of this section are, in this chapter, termed redemptioners."

"Judgment debtors and their successors in interest do not come within the class termed 'redemptioners,' and, therefore, are not required to follow the demands of section 705 [for example, see section 172, below] in making a redemption. While the successor in interest of the judgment debtor is only mentioned in section 701, and the succeeding sections refer to the judgment debtor and redemptioners alone, still that fact is not material. The statute declares that successors in interest have the right to redeem, and further declares in effect that they are not to be considered redemptioners as the word is there used.

at the foreclosure sale or any part thereof,16 OT his successor in interest in the whole or any part of the property,17 or any redemptioner, or the Under such conditions successors in interest stand in the place of judgment debtors, and when the statute uses the term 'judgment debtors,' as contradistinguished from 'redemptioners,' the words should be construed broad enough to include successors in interest of judgment debtors. That such was the intention of the legislative mind there can be no question, and that the successor in interest of the judgment debtor possesses the rights given by the statute to the judgment debtor, rather than those of the redemptioner, there is likewise no question": Phillips v. Hagart, 113 Cal. 552, 555, 54 Am. St. Rep. 369, 45 Pac. 843.

16 Person Who Owned Interest Sold may Redeem.— (The code language is "judgment debtor," but that is not wholly appropriate in case of foreclosure sales.) The judgment debtor as such may redeem without regard to whether or not he has a successor in interest in the property: Yoakum v. Bower, 51 Cal. 539; Southern California Lumber Co. v. McDowell, 105 Cal. 99, 101, 38 Pac. 627.

Persons not Entitled to Redeem -Illustrations.

The mayor of a city, when not clothed with authority by the legislative power, is not qualified to redeem sold property of the city on its behalf, even though he presents the redemption money to it: Thorne v. San Francisco, 4 Cal. 127, 145-147, 154, per Wells, J., and Murray, C. J.; Heydenfeldt, J., dissenting (pp. 169-171).

A taxpayer as such is not qualified to redeem the property of the city in which he pays his taxes from the sale thereof, although he himself advances the money for the redemption: Thorne v. San Francisco, 4 Cal. 127, 149, 150.

17 Who may Redeem as Successor in Interest.

Where a mortgagor declares a homestead upon mortgaged property, his wife becomes his successor in interest, and in case of the foreclosure sale of the prop

erty is entitled to redeem: Hefner v. Urton, 71 Cal. 479, 12 Pac. 486; Watts v. Gallagher, 97 Cal. 47, 51, 31 Pac. 626.

The purchaser of immovable property at execution sale, whatever is the nature of his title, legal or equitable, becomes from the date of the purchase a "successor in interest" of the judgment debtor, "for by the provisions of section 700 of the Code of Civil Procedure it is . . . . provided that 'upon a sale of real property, the purchaser is substituted to and acquires all the right, title, interest, and claim of the judgment debtor thereto'; which is to say, unequivocally, that he becomes the successor in interest of the judgment debtor; nor is the language used susceptible of a different construction. Any other construction of the act would lead to the absurd result that by purchasing at an execution sale the purchaser would lose the right to redeem altogether [which in this case he theretofore had as a judgment lienor], for . . . . his judgment is satisfied and his lien thus extinguished": Pollard v. Harlow, 138 Cal. 390, 71 Pac. 454.

In denying a petition for rehearing, Shaw, J., February 24, 1903, however, points out that it is sufficient for the purposes of the case to hold that the purchaser may redeem without holding that the right of the judgment lienor was ended, and evidently doubts the latter proposition.

The successor in interest of a cotenant of a remainder in fee, where the entire estate in the property was sold, is authorized to redeem the property as a successor in interest: Warner Bros. Co. v. Freud, Cal., March 19, 1903.

The successor in interest of a cotenant of the land which was sold is a qualified redemptioner: Calkins v. Steinbach, 66 Cal. 117, 119, 120, 4 Pac. 1103.

Where, after the sale of property under execution or a foreclosure judgment, the judgment debtor or mortgagor conveys the property, the grantee "becomes his successor in interest, and as such entitled to redeem within the statutory time': Simpson v. Castle, 52 Cal. 644, 649.

A trustee in bankruptcy may redeem as a successor in interest: In re Novak, 111 Fed. (D. C.) 161.

assigns18 or duly qualified agent19 of any one of them, is entitled to redeem the property in its entirety,20 or in the same subdivisions in which

Where a partnership mortgaged its property, and after the death of one partner the mortgage was foreclosed, an heir of the deceased partner before the partnership has been wound up is not entitled to redeem, nor is an assignee of a judgment creditor of such heir at law: McGorray v. O'Connor, 79 Fed. (C. C.) 861, 864, 87 Fed. (C. C. A.) 586, 589.

For where property and the title thereto is vested in a partnership, upon the death of a partner, the surviving partner had "the absolute right of possession, and the power to control the property until the affairs of the partnership were wound up. It is still in his hands as such surviving partner. No right of redemption has descended to the heirs of" the deceased partner: McGorray v. O'Connor, 87 Fed. 586, 589, 31 C. C. A. 114.

18 Assign may Redeem.-The judgment debtor may assign his right of redemption to a third party, who may thereupon redeem, notwithstanding the transfer of a portion of the property to a successor in interest: Southern California Lumber Co. v. McDowell, 105 Cal. 99, 102, 38 Pac. 627.

19 Duly Qualified Agent may Redeem.-A redemption may be made by the authorized agent of a qualified redemptioner when it affirmatively appears to the sheriff that he is acting for such redemptioner and the redemption money is paid in behalf of the redemptioner: Hooker v. Burr, 137 Cal. 663, 70 Pac. 778.

20 Such Person may Redeem in Entirety. - Where property was sold under a judgment against the two tenants in common of the property, a subsequent judgment creditor having a lien against the undivided interests to one of the cotenants may redeem the whole property: Eldridge v. Wright, 55 Cal. 531, per Thornton, J., Morrison, C. J., McKinstry, McKee, and Ross, JJ.; Sharpstein and Myrick, JJ., dissenting.

it was sold.21 Every22 creditor holding a judgment lien or mortgage against the property sold or against any share or part thereof, subordinate

21 May Redeem in Divisions in Which Sold.- Where the sale of a piece of land divided in known parcels could not be effected in parcels, and thereupon the sheriff sold the whole land in two parts to two different purchasers, any redemption must be made according to the parts in which it was sold: Hibernia Sav. etc. Soc. v. Behnke, 121 Cal. 339, 341, 53 Pac. 812.

22 Redemption Defined. - This definition of a redemptioner is found in the second subdivision of code, section 701 (see note 15, above). Referring to it, the court, in Eldridge v. Wright, 55 Cal. 531, 535, says: "This subdivision, in our judgment, defines the class of persons who have a right to exercise the privilege of redemption. It does not in any way limit or define the extent of the right. Such extent will be found in the other provisions of the statute."

In view of the language of the Code of Civil Procedure, section 705, first subdivision (compare section 172, below, first subdivision), however, it seems that any encumbrancer (any encumbrancer of record, at any rate) may redeem, for in enumerating the records which the redemptioner must produce, that subdivision states that [where the redemption is made from a judgment lien] the redemptioner must produce "a copy of the docket of the judgment," while if the redemptioner redeems "upon a mortgage or other lien, a note of the record thereof" must be produced, thereby clearly implying that not only holders of judgment liens and mortgages, but also the holders of other recorded liens, may become redemptioners.

Persons Who are not Redemptioners - Illustrations. Where mortgaged property is sold at foreclosure to a third party, a judgment creditor having a lien against the property of the mortgagor by virtue of the docketed deficiency judgment arising from the mortgage sale is not authorized to redeem from the purchaser at the sale: Hershey v. Dennis, 53 Cal. 77.