Brown was under no obligation to pay the tax, and the rule laid down in Coppinger v. Rice (33 Cal. 425), does not apply to the facts of the present case.
In Anderson v. Rider (46 Cal. 137), it was held that the sheriff’s deed was not void because the purchase-money was not paid for several months after the sale, there being—as in the case at bar—no stipulation for credit between the sheriff and purchaser.
*11The certificate of purchase, which was executed when the money was paid, took effect by relation as of the date of the sale, and the deed of the sheriff, made six months after the sale, was not void. But the doctrine of relation can never be made operative to deprive one of a substantial right, which could not have been effectively exercised until after the execution of the instrument or happening of the event, which is held to take effect at or to have relation to the prior date.
The court below found that within six months after the payment of the money to the sheriff, defendant, Fred Elliott, deposited with or paid to the sheriff a sufficient sum to redeem the property. Until the purchaser had paid the money it is clear that he was not entitled to receive the redemption-money, and until the certificate was issued Elliott could not exercise his, right to redeem from the purchaser personally, or know how or when to exercise it.
While, therefore, the legal title passed to Mayo by the deed of the seventh of March, 1870, a court of equity would recognize the right in Elliott to redeem from him at any time within six months from the payment of the purchase-price by Mayo, and decree a conveyance of the legal title. But the controversy here is between Elliott (and his co-defendants) and Maina, an innocent purchaser for value, who has acquired the legal title from Mayo. There never was any well-founded doubt as to the doctrine, in cequali jure melior est'conditio possidentis, in cases where • the plaintiff sets up an equitable title against an equitable title, or a legal title of the defendant, acquired by a bona fide purchase without notice; for in such case, if the title of each party be equitable, the maxim must apply with full force; and if the title of the defendant be a legal title, equity ought not to deprive him of the protection of that title, as it is, under the circumstances, the superior title. (Story’s Eq. Pl., Sec. 604 a.)
The equity is equal between persons who have been equally innocent and equally diligent.
In this case the defendant seeks to avoid the effect of the legal title in plaintiff’s hands by proof of an equity, which *12would have enabled him to control it while in the plaintiff’s grantor, the purchaser at the sheriff’s sale. But as the case shows an equal equity on the part of plaintiff, the legal title must prevail.
Judgment affirmed.