If the purchase is made by the plaintiff in the action, under the great weight of authority, his title will be defeated by a subsequent reversal of the judgment. This rule was adopted in this state in Reynolds v. Harris, 14 Cal. 667. Whether the reversal of the judgment will affect the title of the grantee of the plaintiff who has thus purchased the land has been differently decided in different jurisdictions; in some by reason of statutory provisions, and in others depending upon the manner in which the question has been presented. In those jurisdictions in which it is held that the title of the plaintiff himself, who becomes the purchaser, is not affected by a reversal of the judgment, the courts necessarily hold that the title of his grantee will not be affected, and the cases cited therefrom (Parker v. Anderson, 5 T.B. Mon. 445, and Bickerstaff v. Dellinger, 1 Murph. (N.C.) 272) need not be considered.
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Appeal from the Twelfth District. Up to a certain point, the facts may be found in Reynolds v. Harris, 14 Cal. 667, and Raun v. Reynolds, 15 Cal. 459. After the decision in 14 Cal. the case was returned to the District Court, where various orders were made, as stated on page 461, 15 Cal., and also orders appointing a referee to receive from Harris, his agents, and employes, an account of the rents, issues, and profits, together with a statement of the gross receipts and profits of the canals since the 11th of November, 1858, and report the same.
The power of the appellate courts to restore benefits lost pursuant to a judgment modified or reversed exists by virtue of sections 957 and 988f of the Code of Civil Procedure. [3] But the power of a court whose order or judgment has been reversed to order restoration after reversal is inherent in that court. ( Reynolds v. Harris, 14 Cal. 667, 680-681 [76 Am.Dec. 459]; Polack v. Shafer, 46 Cal. 270, 276; Hewitt v. Dean, 91 Cal. 617, 620 [28 P. 93, 27 Am.St.Rep. 227]; Heydenfeldt v. Superior Court, 117 Cal. 348 [49 P. 210]; Kenney v. Parks, 120 Cal. 22, 24 [52 P. 40]; Levy v. Drew, 4 Cal.2d 456, 459 [ 50 P.2d 435, 101 A.L.R. 1144]; Oldfield v. Bank of Americaetc. Assn., 6 Cal.2d 103, 107, 112 [ 56 P.2d 1235]; Hansen v. d'Artenay, supra, 13 Cal.App.2d 293, 297; Bank of America v. McLaughlin, supra, 37 Cal.App.2d 415, 417; see, also, cases collected in Seavey and Scott's Notes to Restatement of the Law of Restitution, p. 84.
The appellant having appeared at the hearing of the motion to set aside the judgment, and contested the same, and it not appearing from the record that his appearance was special, or that any objection to the hearing of the motion was made, he waived written notice thereof. (McLeran v. Shartzer , 5 Cal. 70; Reynolds v. Harris , 14 Cal. 667; 76 Am. Dec. 459.) When the plaintiff abandoned his suit, the defendant was at once entitled to a judgment for the return of the property, or in case it could not be returned, for its value and damages.
Thus, where the plaintiff in the action purchases the defendant's property under a sale ordered by a judgment, the former owner, after reversal on appeal, may have the sale set aside and be restored to possession. (See Reynolds v. Harris,supra, 14 Cal. 667.) The same rule was applied to plaintiff's assignee ( Di Nola v. Allison (1904) 143 Cal. 106 [ 76 P. 976]) and to plaintiff's grantee, even if the plaintiff had conveyed to a third party before defendant appealed from the underlying judgment ( Mills v. Laing (1918) 38 Cal.App. 776 [ 177 P. 493]).
Since petitioners have elected to stand upon the sale, they must restore to appellants $5,000 before they are entitled to possession of the premises. ( Yndart v. Den, 125 Cal. 85, 57 Pac. 761; Hewitt v. Dean, 91 Cal. 617, 28 P. 93, 25 Am. St. 227; Reynolds v. Harris, 14 Cal. 667, 76 Am. Dec. 459; Munson v. Plummer, 58 Iowa, 736, 13 N.W. 71.) It is a principle of law, broken only by a case or two, that a party obtaining through a judgment, before modification, any advantages or benefits, must restore what he got to the other party after the modification.
If it is not stayed the foreclosure sale may be held pending the appeal. But upon reversal on appeal the sale will be set aside if the mortgagee has purchased, either by the court on appeal (sec. 957, Code Civ. Proc.), or upon motion in the lower court. ( Di Nola v. Allison, 143 Cal. 106 [ 76 P. 976, 101 Am. St. Rep. 84, 65 L.R.A. 419]; Reynolds v. Harris, 14 Cal. 667 [76 Am. Dec. 459]; Mills v. Laing, 38 Cal.App. 776 [ 177 P. 493]; 2 Cal. Jur. 1000, 1062; 2 R.C.L. 291-301.) It is also held that where property has been purchased by a party to the action at an execution sale had upon a money judgment, the sale will be set aside where the judgment is reversed on appeal.
There is a general rule that a party obtaining through a judgment, before reversal, any advantage or benefit, must restore what he got to the other party, after the reversal. ( Reynolds v. Harris, 14 Cal. 667, 681 [76 Am. Dec. 459]; Cowdery v. London etc. Bank, 139 Cal. 298 [ 73 P. 196, 96 Am. St. Rep. 115]; Ward v. Sherman, 155 Cal. 287 [ 100 P. 864].) Herein appellant claimed an execution lien on the money and property taken into custody by the court in the interpleader cause, to the extent of the amount of his judgment against J.M.
If the purchaser under such judgment, not void on its face, had no notice of the falsity of the officer's return or the recital of service in the judgment, and pays a valuable consideration, relying upon the face of the record, his rights are superior to the defendant's. See Harrison v. Hargrave, 120 N.C. 96, 58 Am. St. Rep. 781; Sutton v. Shonwald, 86 N.C. 198, 41 Am. Rep. 455; Davis v. Dresback, 81 Ill. 393; Dunklin v. Wilson, 64 Ala. 162; Wilson v. Hoffman (N.J. Eq.) 50 A. 592; Fox v. Robbins, (Tex. Civ. App.) 62 S.W. 815; Cassidy v. Automatic Time-Stamp Co., 185 Ill. 431, 56 N.E. 1116; Reeve v. Kennedy, 43 Cal. 643, 650; Stokes v. Geddes, 46 Cal. 17; Friebe v. Elder, 181 Ind. 597, 105 N.E. 151; Hilt v. Heimberger, 235 Ill. 235, 85 N.E. 304; McCormick v. McClure, 6 Blackf, 466, 39 Am. Dec. 441; Taylor v. Boyd, 3 Ohio, 337, 17 Am. Dec. 603; Gould v. Sternberg, 128 Ill. 510, 15 Am. St. Rep. 138; Reynolds v. Harris, 14 Cal. 667, 76 Am. Dec. 459; Hudepohl v. Liberty Hill Water Co., 94 Cal. 588, 28 Am. St. Rep. 149; Macklin v. Allenberg, 100 Mo. 337, 13 S.W. 350. In Ray v. Harrison, 32 Okla. 17, the plaintiffs were purchasers under the execution sale.
There are several decisions to the effect that want of proper notice of a motion is waived where the opposing party appears and contests the motion. (McLeran v. Shartzer, 5 Cal. 70, [63 Am.Dec. 84]; Reynolds v. Harris, 14 Cal. 667, [76 Am. Dec. 459]; Acock v. Halsey, 90 Cal. 215, [27 P. 193]; Herman v. Santee, 103 Cal. 519, [42 Am. St. Rep. 145, 37 P. 509].) "Where the object of notice was accomplished," said the court in McLeran v. Shartzer, 5 Cal. 70, [63 Am. Dec. 84], "it is immaterial whether there was notice or not."