Section 704 declares that "a tender of the money is equivalent to payment." Speaking of a tender in redemption made within the time prescribed by law, this court, in Leet v. Armbruster, 143 Cal. 663, [ 77 P. 653], said that "the tender operated instantaneously to redeem the property and revest the title in the redemptioner." But was the redemption authorized by the decree in Benson v. Bunting the redemption provided for in section 702 et seq. of the Code of Civil Procedure?
Reference to the certificate of sale is made only in fixing the time for redemption and providing for the payment of the redemption money to the holder of the certificate. Redemption from execution ( Leet v. Armbruster, 143 Cal. 663 [ 77 P. 653]; Phillips v. Hagart, 113 Cal. 552 [45 P. 843, 54 Am.St.Rep. 369]; Hershey v. Dennis, 53 Cal. 77; see Code Civ. Proc., § 704) and tax sales is ordinarily provided for in this manner ( Los Angeles Olive Growers' Assn. v. Pozzi, supra; Cooper v. Shepardson, 51 Cal. 298; List v. Sandell, 42 Cal.App.2d 505 [ 109 P.2d 376]; Laist v. Nichols, 139 Cal.App. 202 [ 33 P.2d 866]; see Leet v. Armbruster, supra; 24 Cal.Jur. 342). It is also the general rule that a proper tender is equivalent to payment and effects a redemption of the land sold.
It has been held under this section that a tender, duly made, of the amount of an obligation works a discharge of a lien given as collateral security therefor. ( Leet v. Armbruster, 143 Cal. 663, 668-672 [ 77 P. 653]; Walker v. Houston, 215 Cal. 742, 745-747 [ 12 P.2d 952, 87 A.L.R. 937].) In support of his motion to dismiss, respondent urges that appellant, being a mere purchaser of the property subject to the lien, is not a party to the note or indebtedness secured, but rather a stranger thereto, and cannot therefore by a mere tender discharge the lien and free the property therefrom but must actually pay the amount due.
Interest is stopped, sureties are released, and liens are discharged. ( Leet v. Armbruster, 143 Cal. 663 [ 77 P. 653]; Loughborough v. McNevin, 74 Cal. 250 [5 Am. St. Rep. 435, 14 P. 369, 15 P. 773]; Wiemeyer v. Southern T. C. Bank, 107 Cal.App. 165 [ 290 P. 70].) Some uncertainty exists as to whether tender discharges a mortgage, but logically it should, for the mortgage is only a lien.
Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Appellant. The purchaser at a foreclosure sale acquires all the right, title, interest and claim of the judgment debtor to the premises so sold. ( Steinour v. Oakley State Bank, 45 Idaho 472, 262 P. 1052; Foorman v. Wallace, 75 Cal. 552, 17 P. 680; Robinson v. Thornton, 102 Cal. 675, 34 P. 120; Duff v. Randall, 116 Cal. 226, 58 Am. St. 158, 48 P. 66; Pollard v. Harlow, 138 Cal. 390, 71 P. 454; Leet v. Armbruster, 143 Cal. 663, 77 P. 653.) If the judgment debtor has legal title to the property, the same passes to the judgment creditor by the sheriff's certificate.
The tender of the redemption money terminated the effect of the sale and restored the estate in the lands to Steinour. (C. S., sec. 6934; Bunting v. Haskell, supra; Leet v. Armbruster, 143 Cal. 663, 77 P. 653.) If one or both parties to a contract labor under a mistake or misapprehension as to their existing legal rights or interest in the thing conveyed or contracted about, the mistake will be treated as a mistake of fact against which relief will be granted.
Enough appears, however, to show that the amount tendered by the plaintiff did not cover the principal and interest of the purchase money and the subsequent taxes paid by defendant and his grantor. This is important only upon the question of the stoppage of interest (Civ. Code, sec. 1504; Leet v. Armbruster, 143 Cal. 668, [ 77 P. 653]), and the question of the imposition of costs, which, in such cases, rests largely in the discretion of the trial court. (Gray v. Dougherty, 25 Cal. 282.)
And the creation of the lien does not impose any duty on plaintiff by implication to pay the amount represented by the lien for section 2890, Civil Code, provides that "The creation of a lien does not of itself imply that any person is bound to perform the act for which the lien is a security." Defendant's reliance on Leet v. Armbruster, 143 Cal. 663 [ 77 P. 653], and Haile v. Smith, 113 Cal. 656 [ 45 P. 872], is misplaced. In each of these cases there was an underlying debt.
It has been held under this section that a tender, duly made, of the amount of an obligation works a discharge of a lien given as collateral security therefor. ( Leet v. Armbruster, 143 Cal. 663, 668-672 [ 77 P. 653]; Walker v. Houston, 215 Cal. 742, 745-747 [ 12 P.2d 952, 87 A.L.R. 937].)"
The plaintiff contends, "Tender and refusal is equivalent to payment in effecting completion of redemption and authorizes ejectment." He cites and relies on Leet v. Armbruster, 143 Cal. 663 [ 77 P. 653]. But that contention is too broad.