Hooker v. Hudson

Dewey J. afterward delivered the opinion of the Court. It is objected on the part of the tenant, that by the principles of law this action cannot be maintained. The case of Kelly v. Beers, 12 Mass. R. 387, is relied upon ; in which it was held, that after a sale, by virtue of an execution, of an equity of redemption, there remains nothing in the judgment debtor on which another execution can be levied, the right of redeeming from such first sale being a mere personal privilege of the debtor, and not available to his creditors by process of attachment. It is very obvious that the principle settled in Kelly v. Beers, is not entirely applicable to the present case, as the demandants claim through a conveyance from the debtor, and not under a sale by an officer. That the difference is a material one is quite apparent from the decisions of this Court. In Bigelow v. Willson, 1 Pick. 485, it was held, that a second mortgage having been made after the attachment of the right in equity of redemption, but before seizure on execution, the second mortgagee may redeem the right in equity sold ; thus making a distinction between one claiming to be an assignee under a conveyance directly from the debtor, and one claiming as a purchaser under a sale on execution. The subject however has been more fully considered, and the present question as to the right to redeem more directly settled, in the two subsequent cases of Clark v. Austin, 2 Pick. 528, and Reed v. Bigelow, 5 Pick. 281; in which it was held, if after the equity of redemption has been sold on an execution, the debtor makes a second mortgage of the same premises, the [469] right of redeeming such second mortgage may be taken and sold on execution. These cases fully establish the right of the demandants to redeem the premises from the sale of the first equity. But the question still arises as to the form of action in which this right is to be enforced, in case of the tender of the money due to the purchaser of the equity sold on the execution, and a refusal by him to surrender the premises to him in whom is vested the right to recover. No legitimate provision seems to have been made on this subject prior to the Revised Statutes ; the St. 1783, c. 57, authorizing a writ of entry if a creditor should refuse to surrender real estate set off to him, upon payment by the debtor, within one year, of the amount due, being apparently limited to cases of land set off on appraisement. In the absence of any statute provision, it seems to have been held that a bill in equity was the only mode of proceeding in such cases. Such was the-doctrine of the Court in the case of Bigelow v. Willson. Independent of the Revised Statutes the demandants would have found it difficult, we apprehend, to sustain a writ of entry to enforce their claim. But under these statutes the power is very clearly given, to proceed in this form. By Revised Stat. c. 73, § 26, it is enacted, in case of land set off on appraisal, if the debtor tenders the sum justly due, and the creditor shall not release, a writ of entry may be brought. Section 44 provides a similar remedy for a debtor in case of sale of his equity of redemption at auction ; and in § 46 it is provided, that every thing may be done by heirs and assigns, or by any person lawfully claiming under them, in like manner and with like effect as if done by the debtor himself. That the debtor in the execution might have enforced his right to redeem, under the present form of action, if the right had remained in him, is very obvious, and one claiming under him as assignee clearly has the same right. Judgment for the demandants.