## Facts

- Osio owned land in Marin County and mortgaged it to Bird; the mortgage was assigned to Edwards and then to Cary.
- Cary foreclosed against Osio and Randall (a purchaser from Osio); the sheriff sold the property to Cary, issuing a certificate of sale.
- McMillan obtained a judgment against Randall and bought Randall’s interest at an execution sale.
- Jessie Smith later obtained a separate judgment against Randall; Richards purchased at her execution sale and claimed under that purchase.
- Within the statutory redemption period after the foreclosure sale, McMillan paid the sheriff the amount demanded to redeem, stating he paid “under protest” because he disputed certain charges.
- The sheriff deposited the redemption funds in San Francisco banks; Cary assigned his certificate to Hyatt, and the sheriff issued a deed to Hyatt notwithstanding McMillan’s payment.
- McMillan filed (1) ejectment against Richards et al. for possession, (2) a mandamus-type proceeding to compel the sheriff to issue him a deed, and (3) related litigation seeking return of part of the redemption funds and to restrain disbursement.
- The trial court entered judgment against McMillan in ejectment; related judgments were adverse to McMillan’s broader monetary claims.
- The California Supreme Court consolidated and decided the three matters together.

## Issues

1. Whether a real-property mortgage in California transfers legal title to the mortgagee or creates only a lien.
2. Whether a redemptioner’s payment “under protest” constitutes a valid statutory redemption when the money is delivered unconditionally to the sheriff.
3. Whether McMillan’s interests (execution purchase and redemption) prevailed over Richards’ claim under Jessie Smith’s later execution sale.
4. Whether the mandamus-type proceeding to compel issuance of a deed could be brought outside the county where the land was located.

## Decision

- The court held that a mortgage of real property in California is a lien and does not transfer legal title to the mortgagee.
- The court held McMillan’s redemption was completed upon his unconditional payment to the sheriff; the protest and later efforts to recoup money did not invalidate the redemption.
- The court held McMillan had superior title and right to possession over Richards et al.; the ejectment judgment against McMillan was reversed with directions to enter judgment for him.
- The court held venue for the mandamus-type proceeding in San Francisco County was proper because it sought to compel an official act, not to adjudicate title to real property.
- Disposition: ejectment reversed with directions for McMillan; mandamus and equity-related judgments affirmed.

## Legal Principles

- In California, a real-property mortgage is security only; it creates a lien and leaves legal title in the mortgagor until divested by foreclosure and conveyance.
- Statutory redemption is effected by timely payment of the required amount to the proper officer; an unconditional payment completes redemption even if accompanied by protest.
- Subsequent litigation disputing the correctness of amounts included in a redemption payment does not rescind or negate a redemption already completed by unconditional payment.
- A proceeding to compel a sheriff to perform a ministerial duty (such as executing a deed) is transitory for venue purposes and need not be brought in the county where the land lies.

## Conclusion

The court treated mortgages as liens rather than title transfers and ruled that McMillan’s unconditional redemption payment validly redeemed the property despite protest and later refund litigation, giving him superior title over later execution purchasers; it reversed the ejectment judgment for Richards and affirmed the related mandamus and equity dispositions.


McMillan v. Richards, 9 Cal. 365 (Cal. 1858)