This action was brought to restrain the defendants—the one being a judgment plaintiff and the other the Sheriff—from selling certain real estate under an execution issued upon the judgment. A decree was entered perpetually enjoining the sale of the premises under the execution already issued, or any that might be issued upon that j udgment. • The appeal is taken from the final decree alone. The record does not contain the evidence in the cause nor the findings of the Court. The question presented for consideration is, whether the facts stated in the complaint are sufficient to entitle the plaintiffs to the decree as rendered by the Court below.

The plaintiffs allege that Daubenspeck, Sturman, and Fulton, being the owners of a certain ranch, on the 19th day of November, 1859, mortgaged it to Winne for two thousand five hundred dollars, with interest at two per cent per month, payable in six months after said date, and that on that day the mortgage was recorded, etc.; “ That said amount not being paid according to contract, said Winne commenced suit for the recovery thereof and foreclosure of said mortgage against said parties in this Court, and on the 23d day of November, I860, recovered judgment therein for the sum of three thousand one hundred and seventeen dollars and thirty-three cents,” and interest and costs, with a decree for the sale of the mortgaged premises; that under an order of sale issued upon said decree, the premises were sold by the Sheriff to Winne on the 29th day of December, 1860; that on the 11th of July, 1861, the *510 premises, not having been redeemed, were conveyed by the Sheriff to Winne; and that by mesne conveyance the title so conveyed to Winne vested in the plaintiffs. They also allege that on the 19th of November, I860, defendant Greenwood recovered judgment in said Court against Daubenspeck for four hundred and eighty-three dollars and ninety-five cents, upon which an execution was issued, and the Sheriff levied the same upon the premises, and under it advertised the premises for sale on the 8th of November, 1862. Other facts are alleged respecting certain contracts and conveyances not necessary to be noticed here.

The complaint does not state when the action was commenced by Winne to foreclose the mortgage, and it will be presumed that it was commenced some time before the rendition of the decree of foreclosure, but not ten days, nor any other certain time, for the decree could, under certain circumstances, have been properly rendered immediately after the filing of the complaint. It is not directly nor inferentially stated in the complaint that Greenwood’s judgment was rendered after the commencement of the action of foreclosure. The averments ujoon this point are entirely consistent with the existence of the Greenwood judgment before and at the commencement of the suit by Winne. The plaintiffs have not negatived this state of facts, but as their allegations are to be most strongly construed against them, they will be considered as having averred that the Greenwood judgment was, in fact, entered before the commencement of the foreclosure suit.

The plaintiffs allege in their complaint that it is now pretended that Greenwood’s judgment is a lien upon a momentary seizin of an undivided portion of the premises held by Daubenspeck, during the passage of the title from Winne to Platt, the grantor of the plaintiffs, the deed having been executed by Winne to Daubenspeck and Stunnan, and by them immediately to Platt, in pursuance of an agreement between the parties, having for its object the vesting of the title in Platt, and the giving to Daubenspeck and Stunnan the right to pur *511 chase from Platt, upon certain terms mentioned in the complaint.

The decree, however, not merely restrains the defendants from selling the momentary seizin of Daubenspeck only, but it enjoins them from levying upon or selling the land under any execution issued or to be issued upon the Greenwood judgment; and the decree cannot be maintained, if the defendants might, under such execution, sell any interest of Daubenspeck in the land.

The plaintiffs represent the rights of Winne, and the defendants those of Greenwood, and the action is to be determined as it would be if Winne and Greenwood were alone parties to the suit.

It is assumed by both parties, for the purpose of the argument, that the Greenwood judgment became a lien at the date of its entry upon the premises, subject in all respects to the prior lien of Winne’s mortgage. It therefore necessarily follows that the judgment, not being satisfied or reversed, continued as a lien for two years, unless the lien was divested by proper legal proceedings. If Winne had delayed the foreclosure of his mortgage, and if, during the delay and within two years after the entry of his judgment, Greenwood had proceeded to sell Daubenspeck’s interest in the premises, it would not be pretended that Winne could have enjoined the sale on the ground thas his mortgage was a prior lien upon the land. The respondents urge that “ the judgment creditor only takes the property of his debtor subject to every liability under which the debtor himself holds it,” and there can be no doubt that this is a correct general principle; but it is not dedueible from that principle that the judgment creditor can be cut off from all recourse upon the debtor’s property by proceedings instituted to enforce any liability or lien upon the property prior to the judgment, (with certain exceptions specially provided for by law,) unless the judgment debtor has his day in Court. The contrary doctrine is fully recognized and affirmed in Morris v. Mowatt, 2 Paige, 586 , and in most *512 of the cases cited by counsel of the respondents, and, indeed, it is the well established rule in equity.

If Greenwood had been made a party to the foreclosure suit of Winne, he might have made it appear that the mortgage xlébt. 'had been paid, in whole or in part, or that some portion of the.'lahd-.was not properly subject to the mortgage as;against his judgment, or that some other fact existed that would have-rendered his lien more valuable or effectual. And on the other hand,' his right of sale might have been cut off, and hisdemqdy restricted to the receipt of the overplus money arising fronr the, sale under the foreclosure, and the statutory right of-fedemption from the sale. He was not a party to the foreclosure suit, and his rights are not affected by the decree in that case, for a decree of foreclosure is conclusive only upon the rights of the parties who are before the Court. (Montgomery v. Tutt, 11 Cal. 315 ; Goodenow v. Ewer, 16 Cal. 469 .)

Greenwood’s right of sale of the equity of redemption of Daubenspeck still subsisted, notwithstanding the decree of foreclosure, and the sale and conveyance under it. The extent or value of the interest that he might acquire will not determine his right of sale; but he may sell the slightest interest in the land held by Daubenspeck at the rendition of the judgment or the levy of the execution. His equitable right of redemption not having been cut off by the foreclosure, he might, during the two years that his judgment was a lien upon the premises, purchase the legal title of Daubenspeck under execution issued upon the judgment, which he clearly had the right to do, (Morris v. Mowatt, 2 Paige, 586 ,) and then, according to the well established doctrine of this Court in Montgomery v. Titt, he might assert his right of redemption from Winne’s sale at any time within the period .allowed by the Statute of Limitations.

Pie was entitled to the right of sale, not only that he might fully and properly exercise either the statutory or equitable right of redemption within the period allowed by law, but that he might realize any other benefit or advantage that *513 could accrue to Mm by the sale under his execution. It is, therefore, unnecessary to inquire whether Daubenspeck had any present right of possession or any equitable interest in the premises, derived from the contract mentioned in the complaint, which could be sold under the execi]¿^?^',^>\^^i» The judgment must be reversed, and itiS’s ^j$JerecTfM" he cause be remanded with directions to th^dliirt belpwrtl %- miss the plaintiffs’ complaint.