The complaint herein is based solely upon the obligation of the appellant to pay the amount of his bid, and upon the right of the plaintiff as the assignee of the judgment creditor to recover that amount from him. After setting forth the facts showing the capacity in which the plaintiff brings the action, and the circumstances attending the bid, and its nonpayment, it is alleged that the plaintiff is the owner of and entitled to recover the whole amount "due to the defendant Saunders, as such constable, from the defendant Ambrose on said bid," and the court finds as the fact upon which it rendered judgment against the appellant, that the plaintiff is entitled to have and recover the amount "so due and payable to the defendant Saunders, as such constable, from the defendant Saunders on said bid, and now due to this plaintiff, as such assignee in insolvency." The plaintiff's entire cause of action rests, therefore, upon the appellant's refusal to pay the amount of his bid. The complaint is framed upon the theory that the amount bid was due from the appellant to the officer, and that by reason of the officer's neglect and default the plaintiff is entitled to maintain a direct action against the appellant for its recovery. I think it is very clearly shown in the opinion of Mr. Justice McFarland that there is no privity between the officer and the judgment creditor, by which the latter is authorized to maintain an action against the purchaser for the amount of his bid; but if it be conceded that such privity does exist, the creditor can have no greater right of action than could the officer. The plaintiff has no other cause of action against the appellant than such as existed in favor of his assignor, the steamship company, and that company's right of action, if any existed, accrued October 24, 1891, at the time when the appellant purchased the property at the constable's sale. If the plaintiff's right to maintain the action is to be sustained upon the ground that he is the real party in interest, his right of action can be no greater than that of him who conducted the transaction under which he derived his interest and by virtue of which he claims to be the interested *Page 701 party. If the appellant would not have been liable to Saunders under the facts alleged and found herein, the plaintiff can have no right of recovery against him.
It is very evident that Saunders could not have maintained any action against the appellant for the recovery of the amount of his bid, unless it was commenced within two years after the date of the bid, and it is equally clear upon the facts alleged and shown herein, that at the time the present action was commenced Saunders could not have maintained any action against the appellant upon the check. Not only is it alleged in the complaint that he made no demand for the payment of the check, and that he declined to collect it, but it is also shown that when he received it he inclosed it in an envelope and deposited it in the bank "for safekeeping," and afterward and before the commencement of this action, withdrew it and surrendered it to the appellant. He had the same right to surrender the check to the appellant as he would have had to refuse to receive it at the time of the bid. Having thus voluntarily parted with it, he could not thereafter maintain any action upon it, and his only right of action against the appellant would have been for the recovery of the amount of his bid.
The only reason assigned in the opinion of the chief justice for sustaining the action as against the plea of the statute of limitations, is that the plaintiff is the equitable assignee of the check. No adjudicated case is cited in support of this proposition, nor are any rules applicable to the principles governing equitable assignments invoked in its support. The action herein is not upon the check, and the allegations in the complaint, as well as the evidence offered at the trial and the findings of the court in reference thereto, do not assert any right in the plaintiff by virtue of the check, but are clearly evidentiary statements of the transaction, inserted merely for the purpose of showing that the appellant had not paid the full amount of his bid. Not only does the complaint fail to set forth any right of action upon the check, but as if with the intention not to do so, avoids any claim to the check by reason of its having been received by the officer. After alleging that he accepted it "in lieu of the balance of the purchase price" bid by the appellant, *Page 702 the complaint sets forth that the officer deposited it in the bank of Lompoc, "where, as this plaintiff is informed and believes, the check has ever since been and is now deposited and remains." Although it was shown at the trial that the check had been withdrawn from the bank and surrendered to the appellant before the commencement of the present action, the above allegation shows that, although the plaintiff then believed it still remained in the custody of the bank, he made no effort to get possession of it, or to make it the basis of his action, but relies upon the liability of the appellant for the amount of the purchase money, and thus destroys his right to be regarded as the equitable assignee of the check. An officer making a sale has no right to accept anything but money from the bidder, or to give credit to the purchaser. If he does so, however, he acts in his individual capacity, and not as an officer, and is liable in his individual capacity equally as if he had in fact received the money. The judgment creditor may affirm the act of the officer in accepting the check or other obligation of the purchaser, instead of money, and thus be estopped from questioning the sufficiency or correctness of the officer's act, but unless he does so accept it, he does not acquire any right or title thereto. To say that because he might have accepted the check, it may be assumed that he did accept it, upon the ground that equity deems that to be done which ought to be done — especially when he makes no claim that he was willing to accept it — is to apply this rule in a manner for which I think no authority can be found. The act of the plaintiff in bringing the former action against the officer, in which he charged him with having received the money upon the bid, and obtained judgment therefor, is conclusive against any claim that the plaintiff waived the officer's obligation to receive money upon the bid, and that he was willing to accept the check in its stead. His election of remedies at that time precludes him from maintaining the present action, as is shown in the opinion of Mr. Justice Garoutte.
If the remedy provided in section 695 of the Code of Civil Procedure, in case the purchaser refuses to pay the amount bid by him, is not exclusive, the officer's right of action is limited to a suit for the recovery of the amount of the bid. *Page 703 Such an action is a pure common-law action resting upon the common-law liability of the purchaser upon his bid, and presents no room for invoking the principles of equity, and the rights of the creditor derived by virtue of his privity with the officer can be no greater than those of the officer, but whether the obligation of the appellant is by virtue of the statute, or rests upon his common-law liability, is immaterial. His obligation is not "founded" upon an instrument in writing, and any action to enforce such obligation must be commenced within two years after his liability accrued. (Chipman v. Morrill, 20 Cal. 130; McCarthyv. Mt. Tecarte Land etc. Co., 111 Cal. 328; Thomas v. PacificBeach Co., 115 Cal. 136.) As the present action was not commenced until more than two years after the right of action accrued, the defendant's plea of the statute of limitations should have been sustained.
Rehearing denied.
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