Civil No. 231. Third Appellate District. August 22, 1906.

In the Matter of the Estate of JOSEPH DOMINICI, Deceased; MARIE KOHLER et al., Appellants, v. CHRISTINE ARNDT et al., Respondents.

Appeal from the Superior Court of Stanislaus County-W. M. Conley, Judge.

For Appellants-W. H. Hatton and L. J. Maddux.

For Respondents-Wm. O. Minor, J. W. Knox and Loewy & Gutsch.

ON PETITION FOR REHEARING.

This is a petition on the part of Marie Koh.er for a rehearing. The petition contains nothing new. The case was fully gone into at the hearing and thoroughly considered in writing the opinion. We are therefore unable to see any reason for granting a rehearing.

The petition is denied.

We concur:

CHIPMAN, P. J.

MCLAUGHLIN, J.

BUCKLES, J.

Civil No. 211 First Appellate District. August 15, 1906. WILLIAM L. BUNTING, Respondent, v. BURNETTE G. HASKELL, et al., Appellants.

REDEMPTION-SALE ON FORECLOSURE OF MORTGAGE TENDEREFFECT OF.-A tender by the judgment debtor, as provided by the judgment, within thirty days after the entry of a judgment decreeing that he is entitled to redeem premises sold on foreclosure of a mortgage after the statutory time for redemption has expired, on the ground of fraud of the other party, of the money necessary to effect the redemption, has the same effect as a sufficient tender during the statutory period for redemption would have had; and altho gh the creditor refused to accept the tender it operated a redemption, terminated the effect of the sale and restored to the debtor the estate held by him before the sale.

ID. EXTINGUISHMENT OF LIEN-NOT REVIVED BY AFFIRMANCE OF JUDGMENT. In such a case the lien of the creditor is extinguished by the tender and refusal to accept, and it is not revived by his subsequent appeal from the judgment, or the failure of the debtor to keep the tender good, or by his refusal to comply with a demand after affirmance of the judgment for the payment of the money provided in the judgment for such redemption.

Appeal from the Superior Court of the City and County of San Francisco-J. M. Seawell, Judge.

For Appellants-William B. Sharp.

For Respondent-Edward C. Harrison.

Action to quiet title to certain real property situate in San Francisco.

On and prior to June 1, 1897, Margaret Reese was the owner of the land described in the complaint subject to a mortgage made by her February 20, 1892, to William M. Iburg. In an action thereafter brought against her and others by Iburg for the foreclosure of this mortgage a judgment was rendered April 13, 1897, ur der which the property was sold to the plaintiff herein June 1, 1897, and after the expiration of twelve months therefrom, there having been no redemption from the sale, the property was conveyed to him by the officer who made the sale. Thereafter, June 28, 1908, Margaret Reese and certain defendants herein commenced an action against the plaintiff herein in the superior court for San Francisco, in which action the court, on January 28, 1901, rendered judgment that the plaintiffs therein and each of them were entitled to redeem the property from said sale within thirty days from the entry of said judgment upon payment to the defendant therein (plaintiff herein) of the sum of $819.89. This judgment was entered of record January 30, 1901, and within thirty days thereafter the said plaintiffs tendered to the defendant in said action (plaintiff herein) the amount of money necessary under the terms of the judgment to effect the redemption thereby allowed and provided for, but the said defendant refused to accept the said money. Thereafter the said defendant appealed from the judgment, and upon said appeal the judgment was affirmed by the supreme court December 29, 1903 (Benson v. Bunting, 141 Cal. 462), and the remittitur thereon was filed in the superior court February 26, 1904. Upon taking said appeal the plaintiff herein deposited with the clerk of

the superior court a conveyance of the property to plaintiffs in said action to abide the judgment of the supreme court on said appea and surrendered and delivered the possession of the property to them. After the remittitur upon the affirmance of said judgment, had been filed with the clerk the plaintiff herein made a demand in writing upon the defendants herein (plaintiffs in said action) for the payment of the money provided by said judgment for said redemption, and at the same time tendered to them a conveyance by him to them of said property, but the defendants refused to pay the money so demanded or any part thereof. Thereupon, September 10, 1904, the plaintiff brought the present action for a judgment quieting his title to said property as against said defendants, foreclosing their right of redemption thereof, and perpetually enjoining them from asserting any claim whatever in or to the same adverse to him. Upon the trial of the cause the court held upon the foregoing facts that the plaintiff is and was prior to the commencement of the action the owner in fee simple absolute of the said property, and entitled to the possession thereof, and that neither of the defendants had any estate, right or interest therein, and that the plaintiff was entitled to the judgment prayed for in his complaint, and thereupon rendered judgment in his favor accordingly. From the judgment so entered and recorded the defendants have appealed, and have presented their appeal upon the judgment roll without any bill of exceptions.

The judgment of the superior court, which was rendered January 28, 1901, and afterwards affirmed by the supreme court, that the plaintiffs therein and each of them were entitled to redeem the property herein involved from the foreclosure sale previously made was an adjudication that the said plaintiffs had an interest in the property, and that the title of the plaintiff herein, instead of being absolute, was subject to this interest. The character of that interest is shown in the opinion of the supreme court rendered in said cause upon the reversal of the judgment of the superior court sustaining a demurrer to the complaint (127 Cal. 532), and in its opinion affirming the subsequent judgment in their favor (141 Cal. 462). It there appears that after the sale under the judgment for the fore closure of the Iburg mortgage, and before the time for a redemption had expired, the defendants in the action offered to redeem the property from the sale, and tendered to the purchaser (the plaintiff herein) the full amount of money necessary to effect such redemption, and that he refused to receive the same; and that after the statutory time for redemption had expired, and a conveyance of the property had been executed to him by the officer who made the sale, they brought the action against him which culminated in the aforesaid judgment of January 28, 1901, allowing them to redeem. The complaint therein was based upon a charge of fraud in the defendant in inducing them to believe that they had twelve months from the date of the sale within which to make the redemption; and also upon the ground that their failure to redeem within six months from the sale was the result of a mutual mistake. In its opinion upon the first appeal the supreme court held that upon establishing either of these grounds the plaintiffs would be entitled to redeem notwithstanding the statutory period for redemption had expired

before their offer; and in its opinion upon the last appeal it held that the findings of the superior court in support of the averments of their complaint were fully supported by the evidence.

The judgment was therefore in effect an adjudication that the relation of the plaintiffs therein to the property was the same as that held by them at the time they made the offer to redeem which the defendant refused, and that the interest of the said defendant was subordinate to this interest. Whatever title the said defendant had acquired in the property by his purchase at the foreclosure sale was subject to be defeated by a redemption from such sale. The provision in the judgment, giving thirty days from its entry within which to make the redemption, determined also that the interest of said plaintiffs in the property would continue until that period of time had expired, and that the interest of said defendant therein would not become absolute as against them unless they should fail to effect the redemption within said thirty days. If they should make the redemption in accordance with the terms of the judgment the defendant would cease to have any interest in the property.

The tender of the plaintiffs, within thirty days after the entry of the judgment, of the money necessary to effect the redemption as provided therein had, therefore, the same effect as a sufficient tender during the statutory period for redemption would have had; and although the defendant refused to accept the tender it operated as a redemption and terminated the effect of the sale. "If the debtor redeem, the effect of the sale is terminated and he is restored to his estate." (Code Civ. Proc., sec. 703.) "Tender of the money is equivalent to payment." (Code Civ. Proc., sec 704.) The interest in the property which the defendant in said action acquired by his purchase at the foreclosure sale was therefore terminated, and the plaintiffs therein were restored to the estate held by them before the sale. The respective rights of the parties to the property were thereby fixed, and their rights as thus fixed would not be changed by any subsequent act of either against the will or consent of the other. The subsequent appeal from the judgment by the respondent did not affect the rights of the appellants resulting from such tender and refusal, or impose upon them any obligation to renew the offer of redemption after the determination of the appeal.

The question presented on this appeal was very fully considered in the recent case of Leet v. Armbruster, 143 Cal. 663; and the clear and exhaustive opinion therein by Mr. Justice Henshaw leaves nothing to be added in support of the conclusion there reached. In that case the defendant had purchased the property then in controversy at a sale under the foreclosure of a mortgage. Within the statutory period for redemption the successor of the mortgagor tendered to the purchaser the amount required for a redemption, but the tender was refused. Thereafter he conveyed his interest in the property to the plaintiff in the action, who commenced a suit in ejectment for its recovery. In affirming a judgment in his favor the supreme court cited section 1504, Civil Code, that "An offer of payment or other performance duly made, though the title to the thing offered be not transferred to the creditor, stops the running of interest on the obligation, and has the same effect upon all its incidents as a performance thercof," and held that by virtue

of these provisions, although the purchaser by refusing the tender did not forfeit or lose his right to the money required for such redemption, yet the lien upon the land which he held as security for its payment was thereby extinguished, and the sole right left in him was an action at law for the recovery of the money, saying: "Tender and refusal are equivalent to performance in discharging all collateral and accessorial liens and rights, and in the case of redemption of land in this state ipso facto work a restoration to the judgment debtor or his successor in interest of his title."

The lien of the respondent having therefore been extinguished by said tender and refusal, it was not revived by his subsequent appeal from the judgment, or the failure of the appellants to keep the tender good, or by their refusal to comply with his demand after the affirmance of the judgment for the payment of the money provided in the judgment for such redemption. The superior court therefore erred in holding that neither of the defendants has any estate, right or interest in said real estate, and that the plaintiff is the owner in fee simple absolute thereof.

The judgment is reversed, and the superior court is directed to enter a judgment upon the facts found by it and those admitted in the pleadings in favor of the defendants and dismissing the complaint of the plaintiff.

We concur:

COOPER, J.

HALL, J.

HARRISON, P. J.

Civil No. 142. First Appellate District. August 24, 1906. MICHAEL J. RODRIGUE, Plaintiff and Respondent, v. JOHN W. ROGERS, P. H. McCARTHY and GEORGE H. BAHRS, as Civil Service Commissioners of the City and County of San Francisco, Defendants and Appellants.

SAN FRANCISCO CHIARTER-CIVIL SERVICE-TERM OF EMPLOYMENT. -If the law is complied with the resolution authorizing the employment of a clerical assistant in the department of elections of San Francisco would limit the time of employment; when that expires his employment ends, and he is not discharged in violation of any provision of the civil service provisions of the charter, but the term of his employment or office expires by the law of its creation.

ID.-ID.-APPOINTMENT OF CLERK TO PARTICULAR DEPARTMENT— NOT ENTITLED TO GO TO OTHER DEPARTMENT.-There is no warrant in the San Francisco charter for the position that by an appointment to a position in the department of elections a party becomes entitled to hold a similar or any position in any other office or department of the municipal government. On the contrary, it is perfectly apparent that the head of each department may appoint his own subordinates and assistants, after requisition by the head of such department and certification by the civil service commissioners.

ID.—ID.—ORDINARY CLERKS TERMINATION OF EMPLOYMENT~MUST BE PLACED AGAIN ON REGISTER-ORDER OF PROCEDURE.-It is a proper course for the civil service commissioners in dealing with extra clerks, classified by them as "Ordinary clerks", when the term of employment ends, or the services of such clerks are no longer