Kercheval v. Wood & Luther

By the.Court, Douglass, J. The statute R. S. ch-1, § 3,) declares that the words “real -estate ” shall be construed to include lands and tenements, and all rights thereto, and interests therein, and provides (R. S. ch. 79, § 1,) that all the real estate of the debtor, whether in possession, reversion, or remainder, including lands fraudulently conveyed, &c., may be sold on execution. A certificate of sale of Primary School Lands, under the act of 1837, (L. 1837, p. 209,) vests in the purchaser a right “to the possession of the land until forfeiture by failure to pay the instalments of purchase money, and a right to a conveyance •of the fee when the whole purchase money is paid in the manner provided — it may be recorded like a deed of conveyance, and before forfeiture is sufficient evidence of title to enable the purchaser to maintain trespass or ejectment. (L. 1837, p. 210, § 14; R. S, ch. 60, § 18.) Prior to 1851, we should have inclined to the opinion that the interest of a purchaser of School Lands could not be sold on execution, because there was no provision of law by which the title could become vested in the purchaser at the execution sale, without a resort to :a Court of Chancery. The statute only authorized the Gov<ernor to issue a Patent for the land on delivering, or presentment to him of the certificate. (L. 1837, p. 211, § 11; R. S., ch. 60, § 8.) And rights to land which a court of law could neither protect or enforce, we think are not within the purview of the statute first above quoted. (Bogert vs. Perry, 1 J. Ch. 52; 17 J. R. 350.) We should long hesitate before adopting the view which once prevailed in New York, (Jackson vs. Parker, 9 Cow. [513] 73,) but which has not generally been sanctioned elsewhere, (Modisett. vs. Johnson, 2 Blackf. 431; Orth vs. Jennings, 8 Ib. 421; Barton vs. Rushton, 8 Desaus, 375; Frost & Reynolds, 4 Id. Eq. 494; Deaver vs. Parker, 2 Ib. 44; Ellis vs. Ward, 7 S. & M., 651; but see Miner vs. Wallace, 10 Ohio, 403; Jackson vs. Willianns, Ib. 68,) namely:, that 'where, a person is in possession of land under any ordinary contract* for the purchase, of which specific performance could only be enforced in equity, his possession is such a legal estate as may be sold on execution, and that as it seems-to have been supposed, the sale of this legal estate would carry with it the equitable interest also. ,But an act of 1851, which escaped the attention of the counsel' upon the argument, (L. 1851,¡yp. 84,'85,) provides that “any purchaser of the right, title and interest of'the original purchaser” (of school land,) “ his heirs or assigns, ait cm execution or mortgage sale, shall be deemed an assignee of the person-whose right, title and interest was sold by virtue of such execution or mortgage,” and requires the Governor to issue a patent to such purchaser at execution or mortgage sale, upon the presentment to him of the. certificate of the Commissioner of the State Land' Office, that the whole amount of the purchase money for the land, has been paid, according to law, and that such-last named purchaser is entitled to a patent for the land therein described. This act assumes that such an interest in land as we are considering, is subject to execution — vests the purchaser at execution sale with all the rights of the judgment debtor— and provides a mode by which his title may be perfected without the aid of a Court of Equity. We are of the opinion that since the taking effect of this act, the interest of a purchaser of primary school land is subject to sale on execution, like other real estate.* [514] •To hold otherwise, would he to disregard an unequivocal legislative construction of previous statutes, and to render the act of 1851 a nullity. . Let it be certified to the Circuit Court, as . the -opinion of this Court, that the interest of the defendant, Wood, in the lands in.question, is subject to sale on the execution in favor of the complainant. Footnotes [*] Note. — See Falkner vs. Leith, 15 Alab. 9; Goodlet vs. Smithson, 5 Port. (La.) 254; Rosser vs. Bradford, 9 Ib. 345.