CONCEPCION J. VIUDA DE SYQUIA, IN HER CAPACITY AS ADMINISTRATRIX OF THE ESTATE OF THE DECEASED GREGORIO SYQUIA, PLAINTIFF AND APPELLEE, VS. PERFECTO JACINTO ET AL., DEFENDANTS. …

On December 15,1924, the Bank of the
Philippine Islands obtained a judgment against Perfecto and Felipe
Jacinto and Rafael Palma on a promissory note in its favor executed by
the defendants on May 27, 1922, for the sum of P24,000 with interest at
the rate of 9 per cent per annum plus 10 per cent of the principal as
costs and attorney’s fees. The dispositive part of this judgment is as
follows:

“Se condena a los Sres. P. y F. Jacinto y Rafael
Palma a que paguen a la parte demandante, los primeros como obligados
principales y el ultimo como fiador, la suma de veinticuatro mil pesos
(P24,000) al interns de 9 por ciento al ano desde el 27 de mayo de
1923, mas el uno porciento sobre el principal en concepto de honorarios
de abogado y costas.

“No debe expedirse ejecucion contra el
demandado Sr. Rafael Palma, sino despues de haberse hecho excusion de
los bienes de los senores P. y F. Jacinto.”

On August 16, 1928, the Bank of the Philippine Islands “in
consideration of the sum of P1 and other valuable considerations”
assigned and transferred said judgment to Gregorio Syquia.

On July 12, 1932, the widow of Gregorio Syquia, as administratrix
of his estate, filed suit in the Court of First Instance of Manila
against Perfecto and Felipe Jacinto and Rafael Palma reciting the
aforementioned judgment and assignment and alleging that since the date
of said judgment none of the defendants had paid anything thereon and
there remains still due the sum of P24,000 with interest at 9 per cent
since May 27, 1923. The plaintiff prayed that the judgment be revived
and that the defendants Perfecto and Felipe Jacinto as principal and
Rafael Palma as guarantor be adjudged to pay the sum of P24,000 with
interest since May 27, 1923, and costs. To this petition were attached
a copy of the judgment of December 15, 1924, Exhibit A, and a copy of
the assignment thereof to the plaintiff, Exhibit B.

The defendants filed a joint amended answer in which they admitted
the judgment, Exhibit A, and that said judgment had lapsed and it was
necessary to revive the same; but they denied the assignment to Syquia
and the allegation that nothing had been paid on said judgment and that
the full amount thereof was still due. They set up as a special defense
that the judgment which the plaintiff was attempting to revive has been
fully paid; that at the time of making the assignment to Gregorio
Syquia, the bank had no right or interest under said judgment, the same
having been fully paid, and that the petition does not state facts
sufficient to constitute a cause of action.

In the same answer they set up a counter-demand to the following
effect: that in the month of April, 1925, the Bank of the Philippine
Islands caused an execution to be issued under said judgment and the
sheriff on the request of the bank sold at a public sale three
properties belonging to the defendants Jacinto which had been
previously attached; that at said public sale the bank was the highest
bidder crediting the amount of its bid on the said judgment; that said
parcels of land with their improvements consisting of four houses
yielded a monthly revenue of P880 or P10,560 a year; that during the
year allowed the judgment debtors for redemption the said bank took
control and possession of the said parcels of land and collected and
retained the revenues thereof as aforesaid and that Gregorio Syquia has
been receiving the same since that time, though without any right
whatever; that the said revenues during the year of redemption in the
sum of P10,560 were never applied by the bank as a credit on said
judgment. The defendants prayed that they be absolved from the demand
of the petitioner and that the estate of Gregorio Syquia be condemned
to pay the sum of P10,560 with costs. The answer concludes with a
prayer for general relief.

On the trial of this cause it was shown that at the execution sale
held on April 18,1925, the bank bought two of the properties of the
defendants Jacinto for the sum of P15,045. The third property was sold
to Rufino Reyes for P1,000 which was not credited on the judgment debt
pending the determination of Reyes’ claim of priority. The trial court
stated the judgment debt as of April 18, 1925, as follows:

Loan ………………………………………………………………………………….		924,000.00
Interest from May 27, 1923 to April 17, 1925 at 9 per cent		4,083.29
Costs including sheriff’s sale………………………………………………………..		657.96
		_______________
	Total obligation……………………………………………………….	P28,741.24

from which is to be deducted P15,045 the value of the two parcels
sold to the bank on April 18,1925, leaving a balance due of P13,696.24.
On September 2, 1925, the defendant Palma paid the bank P100 leaving
thus a net balance due of P13,596.24. The trial court entered the
following judgment:

“Dictese sentencia condenando a los demandados, Perfecto Jacinto y
Felipe Jacinto, como obligados principals, y Rafael Palma como fiador,
a pagar a la demandante la cantidad de trece mil quinientos noventa y
seis pesos con veinte y cuatro centimos (P13,596.24), mas las costas
del juicio.

“Se sobresee la reconvencion de los demandados.

“Asi se ordena.

“Manila, I. F., 25 de septiembre de 1933.”

From this judgment only defendant Palma appeals. He submits the following assignments of error:

“1. El Juzgado err6 al no apreciar que la cuenta de
los deudores P. y F. Jadnto quedo liquidada con el banco al efectuarse
la venta de las tineas embargadas por 6ste a favor de Gregorio Syquia
por la suma de P45,000 y que, por consiguiente, la sentencia firme de
diciembre 14, 1924, quedd ipso facto saldada y con creces, en virtud de aquella venta.

“2. El Juzgado erro al no apreciar que el banco no transmitio ningun
derecho, interns o participacion en la sentencia referida al tiempo de
hacerse el traspaso de los mismos a Gregorio Syquia.

“3.
Atin suponiendo que la sentencia firme era subsistente contra los
deudores y su fiador al tiempo de hacerse el traspaso por el banco de
cualquier tftulo, derecho, interns o participacion en dicha sentencia,
el Juzgado erro al no apreciar que se ha constituido una novacion de la
obligacion del fiador sin su conocimiento ni consentimiento, y, por
tanto, sin eficacia juridica contra el.

“4. El Juzgado erro
al no apreciar que el demandado Rafael Palma, como fiador, ha quedado
eximido de su obligacion no solo por efecto de la novacion hecha sin su
conocimiento ni consentimiento, sino tambien por efecto de la
aceptacion por el banco de los bienes inmuebles de los deudores P. y F.
Jacinto, en pago de deuda.”

It is to be noted that Palma filed no separate answer nor special
defenses available to him as guarantor but merely joined in the answer
of his codefendants pleading that the bank had been fully paid. It
should be noted too that the execution which was issued under the
judgment of December 15,1924, and under which said parcels of land were
sold on April 18,1925, was directed solely against the principal
debtors, Perfecto and Felipe Jacinto, Palma not being mentioned therein.

Under his first and second assignments of error, the appellant
argues that when the bank acquired said properties at the sheriff’s
sale on April 18, 1925, for the sum of P15,045, it paid much less than
they were worth, in view of the fact that they yielded an annual,
revenue of P10,560; and this is further established by the fact that
the bank on August 16,1928, sold and conveyed said parcels to Gregorio
Syquia for the sum of P45,000. Exhibits 2-A and 2-B are copies of pages
of the “Ubro de diversas euentas” of the bank, upon which appears the
account of Perfecto and Felipe Jacinto and Rafael Palma. From these it
appears that after the sale by the bank to Syquia, said account was
marked as balanced and closed. From these facts the appellant contends
that the principal debtors, and therefore the guarantor, were
discharged from further liability on the judgment; and that being true,
Syquia acquired nothing by the assignment of the judgment to him by the
bank. In strict law, it is obvious that the plea that the defendants
had paid their debt cannot be sustained. Indeed the appellant himself
in arguing his first and second assignments of error invokes the
equitable principle that no person should enrich himself unjustly at
the expense of another. Clearly this equitable principle has no
application to a legally conducted sheriff’s sale. The appellant does
not question the regularity of the sale. A purchaser at a sheriff’s
sale, when his title has once become vested, may dispose of the
property for such consideration as he sees fit or as he can obtain. The
rule which the appellant asks us to introduce into our jurisprudence
with regard to sheriff’s sales would cast such a doubt upon such sales
that bidders would abstain therefrom and even judgment creditors would
offer less, all to the prejudice of judgment debtors. The Code of Civil
Procedure goes far in protecting the judgment debtor. He may prevent
the sale of the property on execution (sec. 456); or he may redeem it
from the purchaser at any time within twelve months after the sale
(sec. 465). In the instant case, although it was alleged the property
was sold for greatly below its value, the defendants did not exercise
any right of redemption. We hold, therefore, that the judgment debt in
its entirety was not discharged before the action for the revival of
the judgment was brought.

However, the majority of the court are of the opinion that there
should be credited upon the judgment for the benefit of the guarantor
alone the sum of P10,560, being the revenues collected and retained
during the year of redemption by Gregorio Syquia from said properties,
according to the testimony of Perfecto Jacinto (t. s. n., 19, 20, 22).
This conclusion is based on the interpretation given to the provisions
of the Code of Civil Procedure by this court in the cases of Pabico vs. Ong Pauco (43 Phil., 572); Flores vs. Urn (50 Phil., 738); Powell vs. National Bank (54 Phil., 54). It is the view of the writer that this defense so far as the guarantor is concerned is premature.

In his brief and upon the oral argument the appellant has pressed
upon our attention several defences available to guarantors under our
law which, he claims, entitle him to a reversal of the judgment. With
reference to all these defences, it suffices to say that it is conceded
that Palma as guarantor is still entitled to the benefits of articles
1830, 1832 and 1852 of the Civil Code. Up to the present, the judgment
creditor has made no demand on Palma. Joining him in the suit against
the principal debtor is not the demand intended by article 1832 of the
Civil Code. That demand can be made only after judgment on the debt,
for obviously the “exhaustion of the principal’s property”—the benefit
of which the guarantor claims—cannot even begin to take place before
judgment has been obtained. Only then can the creditor “levy upon the
property of the principal”— only then can the liability of the creditor
begin under article 1833 of the Civil Code. It would be absurb and
futile to point out “saleable property of the debtor” at the inception
of the suit, when it cannot be seized or sold, and require the creditor
to make a “levy” upon it.

There is no competent evidence that the principal debtors, Perfecto
and Felipe Jacinto, are insolvent—even if they were not be in funds
when an execution on the revived judgment is issued. So far as this
record shows, the judgment creditor has not exhausted his remedies
against the principal debtors and he is still looking to them for
payment. It is not for the guarantor to anticipate that there will be a
return of nulla bona on the execution, when and if issued.
Nor is it for him to anticipate a demand on him under article 1832 and
to offer defences thereto which have not matured. The occasion for
these defences may never arise. The present revived judgment could not
therefore be res judicata as to such future differences. The
revived judgment does not foreclose any deference which the guarantor
may raise when “demand for payment” is made in him. Indeed, he cannot
claim the benefits of articles 1830, 1832, 1834 and 1852 of the Civiul
Code before femand is made on him; they are all available to him only
after “demand for payment” (art. 1832).

The appellant’s deferences may all be considered when they are
properly presented at the proper time. The case which he now presents,
in anticipation of a demand which has not yet been made, is purely
hypothetical. The courts do not undertake to decide hypothetical cases.

It results that the judgment appealed from must be modified in the
sense that Refael Palma as guarantor may be held contingently liable
only in the sum of P3,036.24 under said judgment, which is in all other
respects affirmed, without special pronouncement as to costs in the
instance. So ordered.

Street, J., concurs.

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AVANCENA, C. J.,

I concur in this decision. Although I dissented in the decision in the case of Powell vs. National Bank (54 Phil., 54), I have to agree with it as long as it is not revoked by the majority.

IMPERIAL, J., concurring in the result:

On December 15, 1924, judgment was rendered in civil cause No. 26942
of the Court of First Instance of Manila in favor of the Bank of the
Philippine Islands and against Perfecto Jacinto and Felipe Jacinto, as
principals, and Refael Palma, as guarantor, for the amount of P24,000
together with interest at the rate of 9 per cent per annum from May 27,
1923, plus 1 per cent on the said amount, as attorney’s fees, and cost
of the proceedings. It was ordered in the said judgment that no
execution shall be issued against the guarantor until after salable
properties of the principal debtors shall have been eshausted. The
judgment became final and the law between parties. On February 20,
1925, execution of the judgment was issued against the Jacintos and the
sheriff levied upon real properties belonging to them which were
purchased at public auction by the Bank of the Philippine Islands for
P15,045. During the year of redemption the properties so sold earned
rentals amounting to P10,560 which were collected and actually received
by Gregorio Syquia, with the knowledge and consent of the judgment
creditor. On August 16, 1928, the judgment creditor sold the same date
but in separate instrument it also sold the same date but separate
value of P1 and for other valuable considerations all its rights,
participation and interest on the aforesaid judgment. The purchaser
died without taking any further step and his administratrix on July 12,
1932, after the lapse of abut eight years from the date of the
judgment, instituted another action against the same debtors and
guarantor for the revival of the judgment.

The guarantor appealed from the judgment rendered by the lower
court whereby he was condemned to pay, as guarantor, to the
administratrix the sum of P13,596.24 plus costs of the suit. His
counterclaim for the rentals was dismissed.

The appellant, being a mere guarantor, no execution could be issued
against him without first exhausting the salable properties of his
principals, as provided by article 1830 of the Civil Code. Same
provision was made in the original judgment rendered against him.
Pursuant to article 1832 the benefit of exhaustion is not available to
the guarantor until after demand for payment is made upon him by the
creditor. In view of the change in our procedural system in civil
litigations the proper and only time for a formal demand for payment
could only be made at the time the execution of the judgment is issued;
but it happened that the execution actually issued has never been
directed against the guarantor.

This being the case and because both the Bank of the Philippine
Islands and its assignee remained inactive for many years and due to
this attitude the principal debtors became insolvent, the guarantor
cannot now be subrogated to the rights and privileges of said creditors
as against the principal debtors and for this reason his obligation on
the surety has been released in accordance with the provisions of
article 1852 of the said Code.

It is argued that the insolvency of the principal debtors has not
been proven, but such fact is virtually admitted by both parties and
the circumstance that neither the Bank of the Philippine Islands nor
its assignee has taken any step to secure an alias writ of execution
against the principal debtors is a clear indication of the latter’s
insolvency.

It is also intimated that inasmuch as there is no positive evidence
of the principal debtors’ insolvency and that the guarantor failed to
allege it in his answer as a special defense it is now premature to
pass upon the obligation contracted by the guarantor. On this point it
might be said that if the guarantor has really been released by
positive acts performed by the Bank of the Philippine Islands and its
assignee, as shown above, the right of the guarantor to be exonerated
has accrued and he is entitled right now to a complete discharge.
Further proceedings are useless and will only promote multiplicity of
actions.

The matter presents another feature which calls for solution under
the principles of justice and equity. The judgment of the bank was only
for P24,000, plus interest and costs.. It bought the real properties of
the principal debtors for P15,045 but afterwards it sold them to
Gregorio Syquia for the sum of P45,000, thus realizing a profit which
amounted to P29,955. As to the assignee, it is true that he paid
P45,000, but the properties so bought are worth more than P68,000 and
in addition to this bargain he collected the rentals during the year of
redemption which amounted to the substantial sum of F10.560. Under
these circumstances and applying the principles of justice and equity
it should have been held that the judgment, which is sought to be
revived, has fully been satisfied. Any other determination on this
particular point will encourage enrichment of a person to the prejudice
of an innocent one.

There can be no question that the late Gregorio Syquia has
collected the rents of the properties assigned to him during the year
allowed by the law for redemption. The testimony of Perf ecto Jacinto
on this point is positive, clear and convincing and it was not
contradicted by any evidence of the appellee. Said rentals amounted to
P10,560 and it should have been credited to the judgment debtors.
(Pabico vs. Ong Pauco, 43 Phil., 572; Flores vs. Lim, 50 Phil., 738; and Angeles and De Angeles vs. Lozada and Saguisag, 54 Phil., 184.)

Other members of this court further maintain the opinion that the
defendant-appellant Rafael Palma has been relieved from further
responsibility as surety through the failure of the Bank of the
Philippine Islands, the predecessor in interest of the herein
plaintiff-appellee, to secure a writ of execution after it was
ascertained, through the levy of the writ of execution issued against
the principals Perfecto Jacinto et al. that the latter had not
sufficient property to satisfy the judgment, thus depriving the
defendant-appellant of the opportunity to point out other properties of
the judgment debtor upon which a levy could be made. To this I am also
agreeable.

The foregoing reasons, as can readily be seen, call for a
dissenting opinion, but in order to expedite the matter with a
sufficient number of votes and inasmuch as defendant-appellant is given
credit for the yearly rentals earned by the properties sold and his
right of exhaustion is upheld and reserved, I concur in the result of
the majority decision.

MALCOLM, VILLA-REAL, and ABAD SANTOS, JJ.;

We concur in the foregoing concurring opinion of Justice Imperial.

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GODDARD, J.,

I dissent.

Upon a sale of real property, under a writ of execution, the
purchaser is substituted to and acquires all the right, interest, title
and claim of the judgment debtor thereto, subject only to the right of redemption. The
officer making the sale must give the purchaser a certificate of sale
containing a particular description of the property sold; the price
paid for each distinct lot or parcel; the whole price paid and the date when the right of redemption expires. (Sec. 463, Code of Civil Procedure.)

The judgment debtor, or the redemptioners mentioned in section 464 of the Code of Civil Procedure, may
redeem the property from the purchaser at any time within twelve months
after the sale, on paying the purchaser the amount of his purchase,
with one per cent per month interest thereon in addition, up to the
time of redemption, together with the amount of any assessments
or taxes which the purchaser may have paid thereon after purchase, and
interest on such last-named amount at the same rate. (Section 465, Code
of Civil Procedure.)

The purchaser, from the time of the sale until a 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 have been received by the judgment creditor or purchaser from
property thus sold preceding such redemption, the amounts of such rents
and profits shall be a credit upon the redemption money to be paid. (Sec. 469, Code of Civil Procedure.)

Is there any provision in our Code of Civil Procedure aside from
that contained in section 469 of that Code, quoted above, that
authorizes this court to allow a judgment debtor a credit for the
amount of the rents and profits of land sold under execution? No. Was
there any “redemption money” paid the purchaser by the judgment debtor
in this case? No. Have the above quoted sections of the Code of Civil
Procedure been repealed or modified? Not by the Legislature. “However,
the majority of the court are of the opinion that there should be
credited upon the judgment for the benefit of the guarantor alone the
sum of P10,560, being the revenues collected and retained during the
year of redemption by Gregorio Syquia from said properties, according
to the testimony of Perfecto Jacinto (t. s. n., 19, 20,22).”—Majority
opinion.

In short the “majority are of the opinion” that the
defendant-appellant, Rafael Palma, is entitled to the rents and profits
on the property during the year of redemption, although the law clearly
provides that the purchaser, from the time of the sale until a
redemption, is entitled to receive such rents and profits and, pursuant
to that opinion, Palma is allowed a credit of P10,560 upon the judgment
against him, not upon “redemption money” which he might have profitably
paid the purchaser. I say might have profitably paid, because this
appellant, in his brief, puts the value of the property sold under
execution at P88,000. The purchaser only paid P15,045. Let us suppose
the appellant had redeemed the property on the last day of the year of
redemption, he would have had to pay the purchaser the sum of P15,045
plus 12 per cent, a total of P16,850.40 less a credit of P10,560, the
alleged value of the rents and profits for the year of redemption, or a
total of only P6,290 for property worth P88,000, a clear profit of
P81,710.

The sections of our Code of Civil Procedure, cited above, are taken
from the California Code of Civil Procedure. The courts of that state,
interpreting the phrase “upon a sale of real property, the purchaser
shall be substituted and acquire all the right, title, interest and
claim of the judgment debtor thereto”, have held that it is by the sale
that the title passes, or, in other words, that at the sale the
purchaser acquires the legal title to the land subject to defeasance by
the happening of the condition subsequent (redemption). (McNutt vs. Nuevo Land Co., 167 Cal., 459; 140 Pac, 6; Leet vs. Armbruster, 143 Cal., 663; 77 Pac, 653; Pollard vs. Harlow, 138 Cal., 390; 71 Pac, 454, 648; Reynolds vs. London & Lancashire F. Ins. Co., 128 Cal., 16; 79 Am. St. Rep., 17; 60 Pac, 467; Breedlove vs. Norwich etc Ins. Society, 124 Cal., 164; 58 Pac, 770 [“It is by the sale that the title passes”]; Leaver vs. Smith, 47 Cal. App., 474; 190 Pac, 1050; Wangenheim vs. Garner, 42 Cal. App., 332; 183 Pac, 670; Youd vs. German Savings & Loan Society, 3 Cal. App., 706; 86 Pac, 991. In McQueeney vs.
Toomey, 36 Mont, 282; 122 Am. St. Rep., 358; 13 Ann. Cas., 316; 92 Pac,
561, the court holds that the title passes to the purchaser on the sale
and notes that in Simpson vs. Castle, 62 Cal., 644, the statute so providing was overlooked.)

It is also held that the various qualifications to the purchaser’s
title are not inconsistent with the vesting of the legal title in him
and that even the continued possession of the land by the judgment
debtor is no more incompatible with the existence of a legal title in
another than in the ordinary case of a tenant and his landlord.
(Pollard vs. Harlow, 138 Cal., 390, 393; 71 Pac, 454, 648.)

It is undoubtedly true that independent of some express statutory
provision to that effect a purchaser at an execution sale would not be
entitled to rents and profits during the time allowed for redemption.
In California, however, the courts have held that this right has been
expressly conferred upon purchasers at sales on civil judgments
obtained in the ordinary administration of justice, it being provided,
in the Code of Civil Procedure of that State, as it is in our Code,
that “The purchaser from the time of the sale until a 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. * * * ”
(Mayo vs. Woods, 31 Cal., 269; California Code of Civil Procedure, section 707; Yndart vs. Den, 125 Cal., 85; Robinson vs. Thornton, 102 Cal., 675.)

The courts of California have also held that the “tenant in
possession” is liable to the purchaser at a sheriff’s sale for the
rents and profits of the land sold. The phrase “tenant in possession”
has been held to be a generic term designed to apply to all cases of
tenancy. In a broad sense, a “tenant” is held to be “one that holds or
possesses lands or tenements, by any kind of title, either in fee, for
life, years, or at will.” Under this definition the owner in fee in
possession is no less, in legal contemplation, a tenant, than the one
who occupies under him. (Harris vs. Reynolds, 13 Cal., 514; 73 Am. Dec, 600.)

The phrase “tenant in possession” also includes a mortgagee of the judgment debtor (Knight vs. Truett, 18 Cal., 113), the trustee and his successor in interest under a trust deed from the judgment debtor (Shores vs. Scott River Co., 21 Cal., 135) and the administrator of the estate of the judgment debtor (Walls vs. Walker, 37 Cal., 424; 99 Am. Dec, 290), when they are in possession after a sheriff’s sale.

In California, prior to 1869, the purchaser at an execution sale
was given the rents and profits of the property without any liability
to account for them in case of a redemption. (Page vs. Rogers, 31 Cal., 293; Kline vs.
Chase, 17 Cal., 596, holding that a debtor who received rent from his
tenants between the sale and a redemption is liable to the purchaser
for the amount received.) In that year the rule was changed by the
adoption of an amendment to section 707 of the Code of Civil Procedure
of that state under which the amount of any rents or profits received
by the judgment creditor or purchaser will be a credit upon the
redemption money to be paid. This section thus liberalized in favor of
the judgment debtor is section 496 of our Code of Civil Procedure.

It is, however, evident that the majority of this court is of the
opinion that the Legislature of the State of California and the
Philippine Legislature did not do enough for the judgment debtor, who,
for some reason or other, fails to redeem his property within a year
after it is sold under a writ of execution. Well, Mr. Judgment Debtor,
cheer up! If you fail to redeem your land within the year provided by
law, your cruel judgment creditor, if he be the purchaser of your
property sold under execution, will now be obliged to allow you a
credit on his judgment against you equal to the amount of the rents and
profits that he may have received from your property during the year of
redemption.

Suppose the judgment creditor is not the purchaser and a third
party buys the property of the judgment debtor at the execution sale,
the former will receive the purchase price to be credited against the
amount of the judgment. In case the judgment debtor fails to redeem
from the third party purchaser, who has received the rents and profits
during the redemption period, would the majority of this court hold
that the judgment debtor then had a right to a credit against the
judgment equal to the value of the rents and profits received by the
purchaser during the period of redemption? In other words would the
judgment creditor have to repay his judgment debtor the value of such
rents and profits? If it be legal and logical to allow such a credit in
the case under consideration, the answer to these questions must be in
the affirmative. However, it would also be just as legal and logical to
compel the third party purchaser to return the rents and profits to the
judgment debtor even though the latter failed to redeem his property
within the period fixed by law.

In view of the provisions of our Code of Civil Procedure and the
decisions of the courts of California, cited above, it is clear that in
the case of a sale of real property, under a writ of execution, the
purchaser, whether he be the judgment creditor or a third party, is
regarded as the owner of such property during the period elapsing
between the sale and the time for redemption; that he is entitled to
the rents and profits, or the value of the use and occupation thereof
during said period and that when such rents, etc. have been received by
the purchaser and the judgment debtor redeems the property within the
period provided by law, then and then only, is the latter entitled to a
credit of the amount of such rents, etc., upon the redemption money to
be paid by him to the purchaser.

The judgment of the trial court should be affirmed with costs in both instances against the defendant-appellant

HULL, VICKERS, and DIAZ, JJ.:

We concur with the above dissenting opinion.