People ex rel. Beekman v. Bunn

By the Court, Bronson, J. The relators, Beekman, Carter and Jesse Curran, as the assignees of judgment number five, which was against Leonard alone, insist that they have acquired the title of the original purchaser to the share or interest of Leonard in the property. (2 R S., 372, § 54.) This claim is resisted by Story on the ground that Beekman and others are assignees of a part only of the judgment number five; and no one can purchase but a creditor having a judgment, which must mean the whole of the judgment. (§ 51.) It may be granted for all the purposes of the present [269] motion, that the assignee of a part only of a judgment can not become a purchaser under this statute; for I think the whole legal interest in the judgment was transfered to the assignees, leaving nothing but an equity in the assignor to be paid the surplus money, if any there should be, after satisfying the debts for the security of which the assignment was made. The language of the instrument clearly goes to the whole of the judgment, and there was nothing in the nature of the transaction which should restrict its legal influence. The trust in favor of the assignor in relation to the surplus was not expressed. It only arises by implication. Had it been expressed, the assignor would have retained nothing more than an equitable interest, which could not affect the legal title to the judgment. Curran has transfered a portion of his equity, through the Herkimer County Bank, to Story; and it may be that Beekman and others will hold the land in trust for Story, so far as relates to any surplus after satisfying their demands. But that can not affect their claim to have a conveyance from the sheriff. Another objection is made on the part of Story. Nellis did not go to the sheriff with the three other assignees at the time the purchase was made. But that only raises a question whether his name should be inserted as a grantee in the deed; or, if the deed should be given to the three, whether there would not be a trust in his favor. Those are matters between Nellis and his associates, with which other creditors can have no concern. If only one of the four joint owners of the judgment had gone to the sheriff, the absence of the others would not have invalidated the purchase. I need not say how it would be should the one claim to act for himself to the exclusion of the other owners, for no such question is made by this casé. When Story attempted to purchase under the Sadler judgment (No. 6), he paid nothing more than the original bid with interest. As he proposed to reach the interest of Leonard, as well as of Curran, he should have paid the whole or some part of the older judgment against Leonard under which Beekman and others had just before purchased. [270] Not having done so, he failed to reach the share or interest of Leonard, and as to that share Beekman and others are entitled to the deed. The next question is between Story and Devendorf, and relates to Curran’s interest in the property. As Story paid the whole sum of money which was bid at the sale, with interest, he made an effectual purchase under the Sadler judgment (No. 6) of Curran’s share or interest in the property. Although the judgment was against both of the tenants in common whose land had been sold, I think the creditor might purchase the share of one, without the other, on paying the whole sum bid at the sale. The case comes plainly within the 51st section of the statute. As the judgments Nos. 1, 3 and 4, and one-half of the judgment No. 2 had been paid on the purchase of Leonard’s share by Beekman and others, it would, perhaps, have been sufficient for Story to pay the remaining half of judgment No. 2 with interest; that"being the only prior unsatisfied lien upon Curran’s share of the property. But he paid more, and thus brought the case within the very words of the statute. Devendorf had the next lien (No. 7), and he also attempted to purchase the share- of Curran. To effect that object he should have reimbursed to Story the sum which he had paid to acquire the title, with interest; or at the least so much as was necessarily paid by Story; and as the Sadler judgment was the prior lien, Devendorf should also have paid to Story the whole amount due on his judgment. (§' 55.) But he paid only half of the amount due on the Sadler judgment, and so failed to make • an effectual purchase. He seeks to bring his case within the 54th section of the statute. But that section was made to provide for a creditor having a lien upon an undivided share, and not upon the whole of the property. (See Erwin v. Schriver, 19 John., 379.) Devendorf’s judgment was against both Leonard and Curran, and his lien consequently extended to the whole of the property. If a creditor having a judgment against both of the tenants in common can not, as I think he may, purchase the share of one only of the debtors, then neither Devendorf under [271] his judgment, which was against both of the tenants in common, nor Story under the Sadler judgment, which was also against both, acquired the interest of Curran in the property. But by proceeding another step we shall find that Story acquired it under the judgment of the Herkimer County Bank against Curran (No. 8), which was a lien upon the undivided share of Curran in the property which had been sold, and upon nothing more. That is the precise case provided for by the 54th section. Story paid more than was necessary to secure his object, but that could do no harm. The result is, that the sheriff must execute a deed to Beekman and others for the undivided share of Leonard in the property, and to Story for the share of Curran. Ordered accordingly