Dickinson v. Kinney

By the Court FlaNdrau, J. In the trial of an issue of law raised upon demurrer to an answer, it is unnecessary for tbe Court to find in its decision- the facts that are admitted in the pleading because such finding cannot influence the case one way or the other. What facts stand admitted must be governed by the pleading itself, and' cannot be added to or taken from by any finding the Court may make. On the 21th day of February, 1858, Levi Nutting recovered a judgment, in the District Court of Rice County, against Leonard K. Flanders and William Peacock, and docketed it in Rice county, on the same day. On the 4th day of May, 1858, he caused an execution to be issued on his judgment, and sold thereon the land in controversy, which belonged to Peacock, one of the Defendants in the execution. At the sale which took place on the 26th day of June, 1858, Nutting became the purchaser, and received from the Sheriff the proper certificate of sale. Afterwards, and on the 20th day of August, 1858, Nutting conveyed by deed of quit claim to' Seth H. Kinney, the Plaintiff below, all the right and interest in the premises that he had acquired by the purchase at the Sheriff’s sale. On the 19th day of May, 1859, the Defendant below, William Dickerson recovered a judgment against Nutting and one Whedden, and docketed it in the county of Rice. After the expiration of the time for redemption had expired, no one having redeemed the land, the Sheriff executed the proper deed to Nutting of the land. Dickerson conceiving that his judgment was a lien on the [415] land, as soon as it was conveyed -by the Sheriff to Nutting, caused an execution to be issued and had it sold, himself becoming the purchaser, and receiving from the Sheriff a certificate of sale. The question presented by these facts is, did the legal estate of Peacock in the land pass to Nutting at the sale on Nutting’s execution, or did he only acquire a lien upon the land, not to be perfected into a title until the delivery of the deed by the Sheriff? The Defendant insists that the title of land sold under an execution remains in the judgment debtor, and is not divested until after the expiration of the time to redeem, and cites quite a number of authorities to sustain his position, which are decisions from New York and Tennessee. The New York cases were decided upon a statute in these words, “ The right and title of the person against whom the execution was issued to any real estate which shall be sold thereby shall not be divested by such sale, until the expiration of fifteen months from the time of such sale; but if such real estate shall not have been redeemed as herein provided, and a deed shall be executed in pursuance of a sale, the grantee in such deed shall be deemed vested with the legal estate from the time of the sale on such execution for the purpose of maintaining an action for any injury to such real estate.” R. S. N. Y., 2d Ed., vol. 2, p. 296, sec. 61. There is no room for doubt under this statute, that the legal estate remains in the judgment debtor, until divested by the Sheriff’s deed, except for the sole purpose of allowing the purchaser to maintain an action for injuries to the estate. The statute of Tennessee probably contains some similar provision, as the cases cited by the Defendant from that State are to the same purport. But our Statute is essentially different in this particular. The provisions which authorize and regulate sales on execution and the redemption of land, are on pages 5'72-5'74 of the Compiled Statutes, from sections 109 to section 121 both inclusive. Sales of real and personal property are treated of together, and the mode of selling each species is provided for. There is no difference made in the Statute between the sale of real and personal property, except that real property is sold subject to redemption, where the estate of the debtor is that [416] of a leasehold of two years or greater; all estates less than a leasehold of two years unexpired term being sold absolutely and without redemption. Comp. Stat. p. 612, sec. 113. When the lien of a judgment attaches to real estate, it operates upon “all the real property of the judgment .debtor in the county owned by him at the time of the judgment or after, wards acquired.” Comp. Stat.p. 566 seo. 77. The execution sells the same interest and estate that the judgment is a lien upon save and except the qualifying effect of the redemption act: and were it not for this Statutory conditional defeasance by redemption, there would be no reason why the absolute estate should not pass. The words of the Statute which allow the redemption vindicate clearly that the estate of the debtor passes to the purchaser at the sale by providing that “If the debtor or owner redeem at any time before the time for redemption shall expire, the sale is terminated, and he is restored to Ms estate.” Comp. Stat.p. 573, sec. 116 last clause. We are quite clear that a Statute which"authorizes the sale of a debtor’s property, real or personal, to satisfy his debts, must be understood to pass the whole interest of the debtor when sale is made, unless some limitations are made by the Statute in terms, and that the redemption privilege in our law does not change the character of the estate sold, but simply creates a defeasance by which others interested in the land may become subrogated to the rights of the purchaser, and the debtor finally defeat them all and be restored to his estate. The whole operation of the Statute is contingent upon the interference of a redemptioner which may never take place, in which case the estate that the purchaser takes by his deed is the same that he purchased at the sale, relieved of a right in others to purchase it from him. Under the view that we feel compelled to take of our Statute, Nutting by his purchase took all the estate that Peacock had in the land subject only to the right of redemptioners to repurchase it from him. This estate was of course assignable, and passed to Kinney by the deed of quitclaim; Kinney being the owner of the estate at the expiration of the time for redemption was entitled to the Sheriff’s deed. The Sheriff executed the deed to Nutting, and he was justified in so doing [417] because there having been no redemption of the land, it became his duty to convey to the purchaser ; I see no reason why the Sheriff should notice the deed to Kinney unless directly informed of the fact and requested by the parties to convey to the assignee of the purchaser. But it by no means follows that because the Sheriff executed the deed to Nutting when Kinney was entitled to it, that Nutting thereby became invested with the legal title to the land. There was no title in the Sheriff as an individual, and his deed is merely the crowning act of the judicial sale and one of its forms and solemnities. The judgment of Dickerson against Nutting could attach to only such lands as were actually in Nutting at the time of its docketing or subsequently acquired by him, Greenleaf v. Edes, 2 Minn. R. 264, unless the act of August 3d, 1858, Sess. Laws 1858, p. 116 Sec. 1, changes the rule in this case. The Statute of 1858 places judgment creditors upon the same footing as Iona fide purchasers, and allows their liens to attach to the lands of their debtors according to the title as it “appears of record,” and not as it exists in fact. It does not appear from the pleadings in this case that the deed of the Sheriff to Nutting was ever recorded, while it is expressly averred that the quitclaim deed from Nutting to Kinney was duly recorded. The title to the land therefore, as shown by the judgment of Nutting against Peacock, the certificate of sale under that judgment, and purchase by Nutting, and the deed from Nutting to Kinney was, as “ appeared of record,” in Kinney, and not inNutting, leaving nothing for the judgment of Dickerson to attach to either in fact or of record. But had the deed of the Sheriff been recorded, we are by no means satisfied that the prior deed of Nutting to Kinney would not have taken precedence, and exhibited the record title in Kinney, as the Sheriff’s deed would of necessity have explained itself by its recitals, and shown that Nutting had the legal estate in the lands at the date of his deed to Kinney. We think the Judge below took the right view of the Statute, and his judgment should be affirmed.