Whipple v. Farrar

By the Court, Green, P. J. . In order to determine whether the complainant is entitled-to any relief as against Farrar, it seems necessary to consider-the effect of the deed to be executed by the defendant, Baldwin, as sheriff) and the successor of the officer who made the sale. This involves an examination of the statutes relative to the sale of real estate upon execution, and an in — 442 — quiry as to the nature and extent of the complainant’s equities. By the Revised Statutes of 1838, under which the sale of the premises in question was made, if the land was not redeemed within the time there limited, the officer who made the sale, or his successor in office, was required to complete the same, by executing a deed therefor, in due form of law, to the purchaser, and such deed was declared to be valid and effectual to convey all the right, title and interest which was sold by such officer. If the purchaser should die before the expiration of the time allowed for redemption, or before the delivery of the deed, then the officer was required to execute and deliver such deed to the executors or-administrators of such deceased purchaser: (R. S. 1838, p. 325, §§ 16, 17.) In 18M, (Laws of 1841, p. 134,) sec. 16, above referred to, was so amended as to provide that in cases-of land theretofore sold on execution, the officer making such sale, or his successor in- office, should complete the same by executing a deed thereof to the purchaser, or to the person or persons who might have acquired the interest of the purchaser "by assignment, or otherwise. By the Revised Statutes of 1846, the officer who made the sale, or his successor in office, after the time limited for redeeming had expired, was required to convey the premises sold, to the purchaser, or to the creditor, who might have acquired the title of such purchaser as therein provided; and in case the person so entitled to a conveyance should die before the execution thereof) such conveyance was required to be executed to the executor or administrator of such deceased person. (R. S., p. 322, ch. 79, §§ 33, 34.) In 1848, a section was added to chap. 79, making its provisions apply to sales on executions made prior to its taking effect, subject to the time of redemption provided by the law under which such sales were made. (Laws of 1818, p. 314.) By an act approved March 31, 1851, (Laws of 1851, p. 68,) — 443 — chap. 79 of the R. S., relative to the sale of real estate on execution, was so amended as to authorize the deed of conveyance therein provided for, to be executed to the assignee of the original purchaser, or of the creditor who should have obtained the title of such original purchaser; and section 34 of said chapter, was amended so as to read as follows: “ Sec. 34. In case the person who, by the provisions of the preceding sections, would be entitled to a conveyance of any real estate sold by virtue of an execution, shall die before the execution of a conveyance, the officer shall execute'and deliver such conveyance to the executor or administrator of the person so deceased: Provided, That in any case under this or the preceding section, when the rights of the person or persons entitled to such real estate, or any interest therein, shall render it necessary, the Circuit Court of the county in which the officer who made the sale resided, on a hearing of the parties interested, properly brought before it by bill or petition, may direct the conveyance to be made to the person or persons equitably entitled thereto, in such manner as shall be just, and such conveyance shall have the same effect as provided in the preceding section.” The preceding section referred to, provides that such conveyance “ shall be valid and effectual to convey all the right, title and interest, which was sold on such execution.” (Laws of 1851, p. 68.) The case shows that the premises in question were purchased by Holmes & Hasbrook, who were partners, in satisfaction of a judgment in their favor, and for the benefit of the partnership firm, and that Hasbrook died before the execution of the deed. The deed executed by Thompson, as Sheriff, was therefore a nullity, so far as the interest of Hasbrook was concerned. The .complainant purchased from Holmes all the right, title and interest, which he could-convey, in consideration of a. sum of money which was owing to him from the firm, and from Holmes. By a proceeding in the — 444 — Supreme Court of New York, the complainant also acquired all the equitable right and interest which the widow and heirs at law of Hasbrook may have had in the premises, derived from the execution sale. But the conveyance and assignment from Holmes, and the proceedings aforesaid, did not vest in him the full legal title. In view of these facts, however, it seems clear that he was equitably entitled to a conveyance of the premises, and was therefore entitled to relief under the provisions of the amendatory act before cited, if that act can be regarded as applicable to the complainant’s case. He had become equitably vested, in the character of an assignee, with all the title which Holmes & Hasbrook acquired by the purchase upon the execution sale, and the expiration of the time allowed for redemption. The title of a purchaser of real estate sold on execution, or of his legal assignee, after the time of redemption has expired, consists in an absolute right to a conveyance from the. proper officer, which shall vest in him all the right, title and interest of the judgment debtor at the time of the levy. The party having the legal right to such a conveyance,- could compel the execution of it, if refused, by mandamus from the proper Court. But the party having only an equitaMe right to such a conveyance, must, in order to enforce such right, come into a Court of Chancery. "Without some statutory provision, however, recognizing such equitable rights .and authorizing the Court to give effect to it, so as to invest Mm with the legal title, the holder thereof would be remedir less, because, aside from such authority, the statute contemplates no other result than the transfer of the legal title under its provisions. If this view be correct, the only remedy which the complainant had, was in the Circuit Court for the county of Wayne, in which the officer who made, the sale resided at the time of the sale, and inasmuch as he must proceed by bill or petition, his resort was properly had to the Chancery side of that Court, under the amendatory act of — 445 — 1851. This act does mot appear to be obnoxious to the objection, that it creates any new rights, or divests any that before existed; although being an amendment to chap. 79 of the R. S., it is retrospective in its operation under the amendment .of 1848 to the same chapter, (Laws of 1848, p. 314,) it is so only in providing a remedy where none existed before. Farrar’s rights are not in any way abridged or affected by the recognition of an equitable right to a conveyance, derived from the purchasers at the execution sale, and affording' to the persons having such right, an adequate and complete remedy for its enforcement. All Farrar’s right, title and interest in the premises, were sold by the Sheriff upon tbe execution, subject to an 'equity of redemption, to exist for a year. When that was extinguished, all that the judgment debtor had left was the naked legal title, which would probably enable him to continue in- the possession and use of the premises- until the-sale was “.Gomfplieted” by the execution- of conveyance. The amount paid' for the premises had been appropriated for his use and benefit, -and as against him, the purchasers, or their assignee, had an absolute right to a conveyance, vesting them, or -him, with- all the “ title and interest which- was sold on such execution.” The statute recognizes the right of a purchaser as a “ title,” inchoate, indeed, but. -such am one- as might pass from one creditor to another by-purchase, or by assignment to any purchaser thereof. Such title, whatever it may be, passed from the debtor by virtue of the sale; and whatever difficulties might exist to prevent its-being made available, it does not re-vest in him after his equity has expired, and he has failed to redeem. It is manifest, 'then, that Farrar can in no way be injured, or any just right of his be impaired, by giving effect to the -statute under which this suit was instituted in the Court below, and affording- the-relief asked for as against the Sheriff, viz: the execution of a conveyance. This conclusion determines the effect which is to be given to- that conveyance, and which, aB — 446 — we have seen, is to vest in the complainant all the right, title and interest which were «old on the execution, and consequently to give him the right to the possession of the premises. "We are now prepared to consider whether the complainant is entitled to the relief prayed for by his bill, or any portion of it, as against the defendant, Farrar. A decree of the Court below having the effect above indicated, involves an examination and determination of all the facts which it would be necessary for the complainant to establish in an action at law for recovery of possession against Farrar, and It would be matter for regret, if under these circumstances, the Court of Chancery had not the power to grant the full relief to which it finds the complainant entitled, instead of leaving him to seek his further remedy by action of ejectment. Decreeing the surrender of possession of lands in a proper case, is an ordinary and familiar exercise of the power of the Court, and the execution of such a decree is as easy and simple as is the execution of a judgment for possession in an action of ejectment in a Court of law. It is not, in general, within the province of Courts of Chancery to retain jurisdiction and grant relief, where the party has a clear, certain, and adequate remedy at law. But it has often been held, and in New Tork and some of the other States, it is regarded as a settled rule, that where a Court of Chancery has gained jurisdiction of a cause for any purpose of relief, it will retain it, for the purpose of giving full relief. (1 Story Eq. Jur. § 71, note 2, and cases there died; Bradley vs. Bosky, 1 Barb. Ch. Pr. 161.) See also, 2 Harris Ch. R. 286.) This is a rule of such practical utility in promoting the ends of justice — preventing unnecessary suits, saving expense, and avoiding delay, as commends itself strongly to qur approbation, and the case under consideration is one where it may well be applied. — 447 — The complainant further asks that the defendant, Farrar, may be decreed to account' for, and pay to him a just compensation for the use and occupation of the premises. Several cases were cited upon the argument, in which it has been held, that the conveyance executed by the officer who made the sale, or his successor in office, relates back to the sale, or to the expiration of the time allowed for redemption, and hence, it is concluded that the purchaser or his assignee, is entitled to the possession, or the fruits of possession, from that time. The Sheriff’s deed relates back to the levy for the purpose of protecting the title against any conveyance or incumbrance by the judgment debtor, and to the ending of the equity of redemption for the purpose of protecting the purchaser in the possession, when proceeded against by an action of ejectment, or for the purpose of supporting' a conveyance executed by the purchaser or his assignee, &c. (Jackson vs. McCall, 3 Cow. R. 75; Van Rensselaer vs. Sheriff of Onondaga, 1 Cow. R. 449; Dobson vs. Murphy, 1 Dev. and Bate. 586; Boyd vs. Longworth, 11 Ohio R. 234.) It does not follow, however, as a necessary conclusion, that such relation entitles the purchaser or his assignee to compensation for the use and occupation of the premises before his own title is completed. No case has been cited or found, establishing such a principle. The proceeding by which the judgment debtor is to be divested of his property is a statutory one, and until that proceeding has been completed, so as to vest the title, and with it the right to the possession in another; he may lawfully remain in the use and occupation of the premises without being accountable. Upon the expiration of the time limited for redeeming, if the premises are not redeemed, the purchaser, or person holding his title, has a right to have the sale completed by the execution of a deed of conveyance which will give him the right of possession;' but until such deed is executed, or he become in some other way vested with the legal title, he has no right to — 448 — demand, and cannot recover the possession, and not having been entitled to the possession, he has no claim on account oí the use and occupation. We do not think the complainant is entitled to a release from Farrar, although he may have claimed a larger estate than he had in the premises. The complainant had not perfected his title, and had not, as before stated, either the: possession or right of possession, but Farrar held both. The complainant is not, therefore, in a situation which entities him to the aid of a Court of Chancery to quiet his title. Let it be certified to the Circuit Court for the County of Wayne in Chancery, as the opinion of this Court, that the complainant is entitled to the relief prayed for by his bill as against the defendant, Farrar, excepting as to a release- of the premises in question, and as to compensation for the use and occupation thereof, but that he is not entitled to such release or compensation.