Holdgate v. Clark

By the Court, Sutherland, J. The only breach assigned in the declaration is, that the plaintiff had been compelled to pay Loring Delano $140, with costs,' for the use and occupation of the premises mentioned in the defendant’s bond, for the 14 months during which he occupied the same; and the only question in the case is whether, according to the true construction of the defendant’s bond, it indemnifies the plaintiff against a claim of that description. Í am inclined to think it does. Delano owned the premises in question; on the 6th day of April, 1827, they were sold under an execution in favor of the defendant and purchased by him ; on the 9 th of April, he appears to have sold them to the plaintiff and to have bound himself to give him possession on the first of May ensuing, and gave him the bond on which this suit is brought, which indemnifies the plaintiff against all claims whatever to said premises, (with one or two specified exceptions,) except the right of all persons to redeem said premises under the existing laws of this state, under the aforesaid sale thereof, made on the 5th day of April, 1827. Was the right of Delano to compensation for the use and occupation of the premises during the 15 months, a right or claim to redeem them within the meaning of the above exception l It appears to me it was not. The defendant acquired no right to the possession of these premiises, by virtue of his purchase at the sheriff’s sale, until the expiration of 15 months thereafter. Delano, the defendant in the execution, had a right to retain the possession for that period, whether he or any one else redeemed in the mean time or not. His right to the possession, or the use and occupation of the premises, was in no respect dependant upon or connected with the right to redeem, except that they were both secured os [218] conferred by the same legislative act. It appears to me to have been the intention of the parties that the plaintiff should beindemnified against all hazards in respect to this property, except those particularly enumerated, and the hazard of their being redeemed. The hazard or contingency of being called upon to pay for the use and occupation during the I 5 months, floes not fall within that exception. Judgment for plaintiff, with leave to the defendant to plead on payment of costs.