erty may be sold to satisfy his individual debt, to effect which the whole partnership property may be disposed of by the officer making the levy; but such levy and sale must, as far as possible, be in harmony with the rights of the other partners, otherwise the officer becomes a trespasser. Snell v. Crowe, 3 U. 26; 5 P. 522.

But if part of property remain unsold, creditor may insist upon its being sold for deficiency, and is not confined to the uncertain remedy this section gives. Kershaw v. Dyer, 6 U. 239; 24 P. 621; 21 P. 1000.

3255. Bidder refusing to pay, liable for loss on resale. Contempt. If a purchaser refuses to pay the amount bid by him for the property struck off to him at a sale under execution, the officer may again sell the property at any time to the highest bidder, and if any loss be occasioned thereby, the officer may recover the amount of such loss, with costs, from the bidder so refusing, in any court of competent jurisdiction; and the person refusing to pay the costs which have accrued by reason of his bid shall be deemed guilty of contempt of court, and punished accordingly. [C. L. § 3437*.

Mont. Civ. P. 1228. Cal. C. Civ. P. 2 695".

3256. Id. Officer may refuse subsequent bid of defaulting bidder. When a purchaser refuses to pay, the officer may, in his discretion, thereafter reject any subsequent bid of such person. [C. L. § 3438.

Cal. C. Civ. P. 2696.

3257. Id. Liability of officer under two preceding sections. The two preceding sections must not be construed to make the officer liable for any more than the amount bid by the second or subsequent purchaser, and the amount collected from the purchaser refusing to pay. [C. L. § 3439.

Cal. C. Civ. P. 2 697.

3258. Property capable of delivery to be delivered. Certificate. Effect. When the purchaser of any personal property, capable of manual delivery, pays the purchase money, the officer making the sale shall deliver to the purchaser the property, and if desired, execute and deliver to him a certificate of the sale and payment. Such certificate conveys to the purchaser all the right, title, and interest which the debtor had in and to such property on the day the execution or attachment was levied. [C. L. § 3440*.

Cal. C. Civ. P. ? 698*.

Effect.

3259. Property not capable of delivery. Certificate. When the purchaser of any personal property, not capable of manual delivery, pays the purchase money, the officer making the sale must execute and deliver to the purchaser a certificate of sale and payment. Such certificate conveys to the purchaser all right, title, and interest which the debtor had in and to such property on the day the execution or attachment was levied. [C. L. § 3441.

Cal. C. Civ. P. 2 699*.

3260. Real property except leaseholds of less than two years subject to redemption. Certificate of sale. Upon a sale of real property, the purchaser is substituted for and acquires all the right, title, interest, and claim of the judgment debtor thereto; and when the estate is less than a leasehold of two years unexpired term, the sale is absolute. In all other cases, the real property is subject to redemption as provided in this chapter. The officer must give to the purchaser a certificate of the sale, containing:

1. A particular description of the real property sold.

2. The price bid for each distinct lot or parcel.

3. The whole price paid.

4. When subject to redemption, it must be so stated. And when the judgment, under which the sale has been made, is made payable in a specified kind of money or currency, the certificate must also show the kind of money or currency in which such redemption may be made, which must be the same as that specified in the judgment. A duplicate of such certificate must be filed by the officer in the office of the recorder of the county. [C. L. § 3442.

Cal. C. Civ. P. 700*.

Redemption after sale under trust deed, ? 3271.

REDEMPTION.

3261. Who may redeem. 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. [C. L. § 3443.

Cal. C. Civ. P. 2 701.

3262. Id. Six months the period of redemption. Amount payable. The judgment debtor, or a redemptioner, may redeem the property from the purchaser within six months after the sale, on paying the purchaser the amount of his purchase (in the kind of money or currency specified in the judgment, if any be specified), with six per cent thereon in addition, together with the amount of any assessment, or taxes, which the purchaser may have paid thereon after the purchase, and interest on such amount; and if the purchaser be also a creditor, having a lien prior to that of a redemptioner other than the judgment under which the purchase was made, the amount of such lien, with interest. [C. L. § 3444.

Cal. C. Civ. P. 2 702. See Sup. '95, p. 21. Where a purchaser at a marshal's sale waives his rights under the sale, he becomes an equitable mortgagee, with the right of redemption in the judgment debtor; and a subsequent judgment debtor, after sale, could exercise the same right to redeem. McCormick v. Greenhow, 2 U. 363.

When the price obtained on a judicial sale is grossly inadequate, and there were other circumstances impeaching the fairness of the transaction,

such sale will be set aside and the judgment debtor allowed to redeem even after the statutory time for redemption has expired, especially when the sale was attended with serious irregularities, and it appeared that the judgment debtor relied upon the assurance of one of the attorneys that the statutory period of redemption would not be insisted upon. Young v. Schroeder, 10 U. 155; 37 P. 252; affirmed, Schroeder v. Young, 161 U. S. 334.

3263. Id. Subsequent redemptions. Notice thereof and of taxes paid, liens bought, etc., necessary. Deed. If the property be so redeemed by a redemptioner, another redemptioner may, within sixty days after the last redemption, and within six months after the sale, again redeem it from the last redemptioner, on paying the sum paid on such last redemption, with three per cent thereon in addition and the amount of any assessment or tax, which the last redemptioner may have paid thereon after the redemption by him, with inter est on such amount and in addition, the amount of any liens held by said last redemptioner prior to his own, with interest; but the judgment, under which the property was sold, need not be so paid as a lien. The property may be again. and as often as a redemptioner is so disposed, redeemed from any previous redemptioner within sixty days after the last redemption, and within six months after the sale, on paying the sum paid on the last previous redemption with three per cent thereon in addition, and the amount of any assessments, or taxes, which the last previous redemptioner paid after the redemption by him, with interest thereon, and the amount of any liens other than the judgment under which the property was sold, held by the last redemptioner previous to his own, with interest. Written notice of redemption must be given to the officer, and a duplicate filed with the recorder of the county; and if any taxes or assessments are paid by the redemptioner, or if he has or acquires any lien, other that upon which the redemption was made, notice thereof must in like manner be given to the officer, and filed with the recorder; and if such notice be not filed, the property may be redeemed without paying such tax, assessment, or lien. If no redemption be made within six months after the sale, the purchaser, or his assignee, is entitled to a conveyance; or if so redeemed, whenever sixty days have elapsed, and no other redemption has been made, and notice thereof given, the time for redemption by a redemptioner has expired, and the last redemptioner, or his assignee, is entitled to a sheriff's deed, at the expiration of six months after the sale; but in all cases

the judgment debtor shall have the entire period of six months from the date of the sale to redeem the property. If the judgment debtor redeem, he must make the same payments as are required to effect a redemption by a redemptioner. If the debtor redeem, the effect of the sale is terminated, and he is restored to his estate. Upon a redemption by the debtor, the person to whom the payment is made must execute and deliver to him a certificate of redemption, acknowledged and proved before an officer authorized to take acknowledgments of conveyances of real property. Such certificate must be filed and recorded in the office of the recorder of the county in which the property is situated, and the recorder must note the record thereof in the margin of the record of the certificate of sale. [C. L. § 3445.

Cal. C. Civ. P. 2 703*. See Sup. '95. p. 22.

3264. Id. Payments made to purchaser, etc., or to officer. The payments mentioned in the last two sections may be made to the purchaser or redemptioner, or for him to the officer who made the sale or in case his term of office has expired, then to his successor in office. When the judgment, under which the sale has been made, is payable in a specified kind of money or currency. payments must be made in the same kind of money or currency, and a tender of the money is equivalent to payment. [C. L. § 3446*.

Cal. C. Civ. P. 2 704*.

3265. Proof to be made by redemptioner. A redemptioner must produce to the officer or person, from whom he seeks to redeem, and serve with his notice to the officer:

1. A copy of the docket of the judgment under which he claims the right to redeem, certified by the clerk of the court or recorder of the county where the judgment is docketed or filed; or if he redeem upon a mortgage, or other lien, a note of the record thereof certified by the recorder.

2. A copy of an assignment necessary to establish his claim, verified by the affidavit of himself or of subscribing witnesses thereto; and,

3. An affidavit by himself or his agent, showing the amount then actually due on the lien. [C. L. § 3447.

Cal. C. Civ. P. 2 705*.

3266. Waste restrained during period of redemption. Defined. Until the expiration of the time allowed for redemption, the court may restrain the commission of waste on the property by order granted with or without notice, on the application of the purchaser, or the judgment creditor. But it is not waste for the person in possession of the property at the time of sale, or entitled to possession afterward, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used; or to use it in the ordinary course of husbandry; or to make the necessary repairs of buildings thereon, or to use wood or timber on the property therefor, or for the repair of fences, or for fuel in his family while he occupies the property. [C. L. § 3448.

Cal. C. Civ. P. 2 706.

Recovery of damages for injury to property after sale, ? 3519. Injunction generally, ?? 3057-3063.

3267. Purchaser or redemptioner entitled to rents. Accounting. Extension of period. The purchaser from the time of sale until a redemption, and a redemptioner from the time of his redemption until another redemption, is entitled to receive from the tenant in possession the rents of the property sold or the value of the use and occupation thereof. But when any rents or profits have been received by the judgment creditor or purchaser, or his or their assigns, from the property thus sold, preceding such redemption, the amounts of such rents and profits shall be a credit upon the redemption money to be paid, and if the redemptioner or judgment debtor before the expiration of the time allowed for such redemption, demands in writing of such purchaser or creditor or his assigns, a written and verified statement of the amounts of such rents

and profits thus received, the period for redemption is extended five days after such sworn statement is given by such purchaser or his assigns to such redemptioner or debtor. If such purchaser or his assigns shall for a period of one month from and after such demand fail or refuse to give such statement, such redemptioner or debtor may, within sixty days after said demand, bring an action in any court of competent jurisdiction, to compel an accounting and disclosure of such rents and profits, and until fifteen days from and after the final determination of such action, the right of redemption is extended to such redemptioner or debtor. [C. L. § 3449.

Cal. C. Civ. P. 2 707*.

3268. Remedies of purchaser dispossessed through irregularity or defect. If the purchaser of real property sold on execution, or his successors in interest, be evicted therefrom in consequence of irregularities in the proceedings concerning the sale, or of the reversal or discharge of the judgment, he may recover the price paid with interest from the judgment creditor. If the purchaser of property at an officer's sale or his successor in interest fail to recover possession in consequence of irregularity in the proceedings concerning the sale or because the property sold was not subject to execution and sale, the court having jurisdiction thereof, must, after notice, and on motion of such party in interest, or his attorney, revive the original judgment in the name of the petitioner for the amount paid by such purchaser at the sale, with interest thereon from the time of payment at the same rate that the original judgment bore; and the judgment so revived has the same force and effect as would an original judgment of the date of the revival, and no more. [C. L. § 3450.

Cal. C. Civ. P. ? 708.

Revivor of judgment, ? 3237.

Word " property" in second sentence means personal as well as real property. "Possession"

means possession with title, not mere naked possession. Utah Nat. Bank of Ogden v. Beardsley, 10 U. 404; 37 P. 586.

3269. Sheriff to deed lands sold by U. S. marshal under territorial laws. Whenever any real estate has been sold on execution or other judicial sale by any United States marshal under the laws of the territory of Utah, and the time for redemption has expired, a deed to the purchaser or purchasers thereof, or assignee of such purchaser or purchasers, or other person entitled to the same, shall be executed by the sheriff of the county where the property or any part thereof is situated. ['96, p. 181*.

3270. Contribution. Person paying entitled to benefit of judgment. Procedure. When upon an execution against several persons, more than a due proportion of the judgment is satisfied out of the proceeds of the sale of the property of one of them, or one of them pays, without a sale, more than his proportion, he may compel contribution from the others; and when a judg ment is against several, and is upon an obligation 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 is entitled to the benefit of the judgment, to enforce contribution or repayment, if, within ten days after his payment, he files with the clerk of the court where the judgment was rendered, notice of his payment and claim to contribution or repayment. Upon filing of such notice, the clerk must make an entry thereof in the margin of the docket. [C. L. § 3451.

Cal. C. Civ. P. ? 709.

Judgment may direct that property of principal debtor be first exhausted, ? 3185. Surety paying

may be substituted to rights of judgment creditor 23496.

See Culmer v. Wilson, 13 U. 129; 44 P. 833.

REDEMPTIONS UNDER TRUST DEEDS.

Deeds

3271. Six months to redeem from sale under deed of trust. of trust made to secure the payment of money, and all real estate which may be sold by the trustee, or anyone representing him in any deed of trust hereafter

made, according to the terms of the said trust deed, and which shall be bought in at said sale by the cestui que trust, or his assignee, or by any other person, shall be subject to redemption by the grantor in said deed of trust or his executors, administrators, or assigns, or any legal redemptioner, at any time within six months from the date of said sale, on payment of the debt and interest secured by said deed of trust, and all legal charges and costs incurred in making said sale up to the time of redemption; and on such sale, the trustee shall issue to the purchaser a certificate setting forth the property sold and amount of purchase money received, and at the expiration of said six months, said trustee shall issue a deed to the legal holder of such certificate; provided, that upon the death, resignation, or removal from the state of said trustee, or his refusal or inability to act from any cause, the sheriff of the county in which said real estate is situated, shall become the successor in trust of said trustee. ['97, pp. 265–6. Redemption after execution sale, ?? 3260-3269. Redemption after foreclosure, ? 3503.

CHAPTER 42.

PROCEEDINGS SUPPLEMENTARY TO EXECUTION.

3272. Debtor cited to answer as to property, when execution unsatisfied. When an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, issued to a proper officer is returned unsatisfied, in whole or in part, the judgment creditor, at any time after such return is made, is entitled to an order from the judge of the court requiring such judgment debtor, or, if a corporation, any officer thereof, to appear and answer upon oath concerning his or its property, before such judge, or a referee appointed by him, at a time and place specified in the order; but no judgment debtor must be required to attend before a judge or referee out of the county in which he resides. [C. L. § 3452*.

Cal. C. Civ. P. 2714*.

Garnishment proceedings when execution unsatisfied, 3112. Receiver may be appointed to carry judgment into effect. 3114. Appointment of referee generally, 3172.

an

The provisions of this chapter do not do away with the equitable remedy of a creditor's bill to subject debtor's property to payment of his debts. Enright v. Grant, 5 U. 334; 15 P. 268.

3273. Affidavit, etc. Arrest, when. After the issuing of an execution against property, and upon proof by affidavit of a party, or otherwise, to the satisfaction of the court or the judge thereof, that any judgment debtor has property which he or it unjustly refuses to apply toward the satisfaction of the judgment, such court or judge may, by order, require the judgment debtor, or, if a corporation, any officer thereof, to appear at a specified time and place before such judge, or referee appointed by him, to answer concerning the same, and such proceedings may thereupon be had for the application of the property of the judgment debtor toward the satisfaction of the judgment, as are provided upon the return of an execution. Instead of the order requiring the attendance of the judgment debtor, the judge may, upon affidavit of the judgment creditor, his agent or attorney, if it appear to him that there is danger of the debtor absconding, order the sheriff of the county to arrest the debtor, and bring him before such judge. Upon being brought before the judge, he may be ordered to enter into an undertaking, with sufficient surety, that he will attend from time to time, before the judge or referee, as may be directed during the pendency of the proceedings, and until the final determination thereof, and will not, in the meantime, dispose of any portion of his property not exempt from execution. In default of entering into such undertaking, he may be committed to prison. [C. L. § 3453*. Cal. C. Civ. P. ? 715*.

Arrest of absconding debtor, Con. art. 1, sec. 16; 3010. Similar proceedings on attachment, ? 3076.