Levy v. Burkle
Levy v. Burkle
Opinion of the Court
The demurrer to the answer of defendant Elizabeth Burkle was properly sustained. We are of opinion that there is error in the judgment in the direction for the sale of the property without the right of redemption. The right to redeem is given by statute, and the defendant cannot be deprived of it by the court. It makes no difference that the security here involved is a deed of trust. It was held at an early day in Kent v. Laffan, 2 Cal. 595, and ever since, that the statutory redemption applied to a sale on foreclosure of a mortgage. ■ If it applies to a mortgage, it as well applies to a deed of trust. Both are securities only. The difference is only in form. In one case the mortgagee is the trustee; in the other a third person.
The judgment is ordered to be modified in the court below by striking out the direction for the sale without the right of redemption, and when so modified will stand affirmed. Ordered accordingly.
We concur: McFarland, J.; Sharpstein, J.
Reference
- Full Case Name
- LEVY v. BURKLE and Others
- Cited By
- 2 cases
- Status
- Published
- Syllabus
- Trust Deed—Fraud as Defense.—In an Action to Foreclose a Trust Deed, where the answer set up that the property conveyed was the separate property of the wife; that her husband had been arrested on a criminal charge, and obtained bail; that he became financially embarrassed; and that the wife signed the trust deed upon the representations made to her by her husband and the plaintiff, who was a creditor of the husband and one of his bondsmen, that unless she signed the deed the bondsmen would withdraw, and her husband would have to go to jail, and would probably be convicted, and go to the penitentiary, and that by signing the deed she would not lose anything, and that the deed would not devest her of her homestead: held, that a demurrer to such answer was properly sustained. Trust Deed—Order of Sale—Bight of Bedemption.—A court has no authority to order a sale of property without the right of redemption given by statute; and it makes no difference whether the security under which the sale is ordered is a mortgage or a trust deed.