The opinion
Mr. Justice Bean
delivered the following specially concurring opinion:
I concur in the result of the learned opinion of Mr. Justice Burnett, but am unable to accede to all the rulings given as a reason for reaching the conclusion:
(1) To the effect, as .stated, that “when Higgs conveyed, he was not a judgment debtor, and could not transfer any right of such a character, for there was nothing of the kind in existence to sell. ” In a strong opinion in the case of Lauriat v. Stratton (C. C.), 11 Fed. 107 , at page 114 thereof, in considering a case under our redemption statute, Judge Deady said:
“At the date of the mortgages to Swegle and Cooke, Mary Hall was the owner of this property, and, for the purpose of redemption, is to be deemed the judgment debtor in the decree providing for the enforcement of the liens of said mortgages. But at the date of this decree Hessie J. Shane had become the successor in interest of Mary B. Hall, and before the redemption by Stratton, Clamo and Liebe had succeeded to her interest, and sustained the same relation to this decree as the successor in interest of a judgment debtor in a judgment at law.”
The same enunciation was made by Mr. Chief Justice Lord in Willis v. Miller, 23 Or. 352 ( 21 Pac. 827 ), The opinion of Judge Deady, I think, has stood the test of *275 time. A contrary ruling in my' opinion is unnecessary to a determination of the present case. In Jacobson v. Lassas, 49 Or. 470, 473 ( 90 Pac. 904, 905 ), Jacobson, the successor in interest of the mortgagor taking before foreclosure, was held by this court, in an opinion by Mr. Justice Moore, to be a successor in interest entitled to redeem under the statute, the court saying:
“The redemption of the real property by the plaintiff herein abrogated the sale of the premises, and restored to him, as successor in interest of Lettie McCarty, the estate in the land as if the first mortgage thereon had never been given.”
(2) In the opinion of Mr. Justice Burnett it is stated:
“In equity the previous title is extinguished by the decree, while at law the title does not pass until the delivery of the sheriff’s deed.”
In the case of Kaston v. Storey, 47 Or. 150 ( 80 Pac. 217 , 114 Am. St. Rep. 912 ), in discussing the effect of a sale under a decree of foreclosure, it is said by former Mr. Justice Bean :
“A mortgage of real property in this state does not pass the title, but merely creates a lien: Anderson v. Baxter, 4 Or. 105 ; Sellwood v. Gray, 11 Or. 534 ( 5 Pac. 196 ). The legal title remains in the mortgagor or his successor in interest until a sale under a foreclosure decree has ripened into a title by the execution and delivery to the purchaser of a sheriff’s deed in due course of law.”
In Dray v. Dray, 21 Or. 59 ( 27 Pac. 223 ), it is stated:
“After the sale of real property upon execution the legal title still remains in the judgment debtor until the sheriff’s deed is executed.”
Referring to the quotation in the opinion of Mr. Justice Burnett from Livingston v. Arnoux, 56 N. Y. 507 , *276 which it seems to me is applicable to the case in hand, we find:
“Nor is there any incongruity in holding that the right of redemption coexists in the judgment debtor and his grantee. Where the former has conveyed the land, his redemption will inure to the benefit of the holder of the legal title, and the owner has the means of protecting his own interest, if the. judgment debtor is either unable or unwilling to make the redemption. ’ ’
In the case at bar Higgs asks to redeem as-the first mortgage debtor, and as such under the statute has the right to do 'so, provided he has a sufficient interest in the mortgaged premises. This interest he has by virtue of being an indorser or surety upon the note transferred to Strong, and in the foreclosure suit he is a judgment debtor as to the second mortgage. By the decree he is not precluded from redeeming from the sale. It is thus laid down in 2 Wiltsie on Mortgage Foreclosure (3 ed.), Section 1124:
“On the well-recognized principle that a surety has the right to avail himself of the securities held by the creditor, after he has satisfied the debt, a surety for the mortgage debt, even though he has no interest in or lien upon the mortgaged estate, has a right to redeem from the mortgage lien and be subrogated to the rights of the mortgagee.”
The amount received at the foreclosure sale does not change the right of redemption. If the property had brought $4,000, and Higgs was still liable for the difference of about $2,000 on the judgment upon the first mortgage note, his right to redeem as a judgment debtor would seem clear. In short, as well stated by Mr. Justice Burnett, in order for Winnard and Goodman, or their grantee or successor in interest, in whose shoes Mahoney now stands, to have the right to redeem, or the right to prevent the judgment debtor or *277 original mortgagor from redeeming, it is incumbent upon them to pay tbe judgment for tbe second mortgage debt. Our statute appears to contemplate that more than one party may have the right to redeem. In the case at bar the superior right is in Higgs. I am not prepared to concede that the grantee of a mortgagor, taking the conveyance before suit to foreclose and paying therefor, has not the right to redeem under the statute after a sale upon a decree of foreclosure.