Warren v. Fish

By the Cowrt Elakdeau, J. This case turns upon the validity of the redemption made by Mr. Fish, of the lands, on the 19th of February, 1853. He was the grantee of the judgment debtor, and the owner of the land, subject only to the rights of the purchaser, at the sale on execution, and the lien of the McCarty mortgage. He cannot be said to have had a lien upon the land. He was the owner of the fee. A redemption by him did not have the effect of transferring to him the rights of the purchaser, subject to be defeated by other redemptioners; it terminated the sale, and restored him to his estate exactly as it was before the sale took place, except that the judgment upon which the sale was made was satisfied. All other liens, prior and subsequent, remained unimpaired. We do not think Fish was obliged to pay off the McCarty mortgage, held by Ingersoll, when he redeemed. Had he been a redemptioner by virtue of a lien subsequent to that of the McCarty mortgage, he would of course have been compelled to pay it off. Revised Stats. 1851, p. 367, secs. 114-15. [441] All the papers required, by tbe statute, were filed by Eisli with the sheriff. He was not obliged to notify any one else of his redemption. The sheriff, by paying over the money to the purchaser immediately, is presumed to notify him of the fact of the redemption having taken place. There is nothing in the point that the title was in Mr. Winston at the time the redemption was made by Fish. The negotiation was never consummated so as to pass the title out of Fish. The recording of the deed by Mr. Hice was unauthorized, and never sanctioned by Winston. The conveyance by W inston back to Fish afterwards, was probably done to save trouble and clear up the face of the record. It is difficult to understand why the sheriff should have executed the deed to Ingersoll, after receiving the redemption money from Fish, and filing the redemption papers in his office, or why Ingersoll should have accepted the deed, unless it is upon the supposition that the sheriff did not pay over the money, and thus convey to him knowledge that the redemption had been made. The statutes are exceedingly defective in not providing for some record being made of the fact of a redemption having taken place, in the clerk’s office, where the record of the judgment is kept, and the most difficult question that is presented by this case is, whether Mr. Warren, who has purchased in perfect good faith, with a clear record in both the register’s and the clerk’s office, should be chargeable with notice of this redemption, merely by reason of the filing of the papers in the sheriff’s office. In examining the rights of Mr. Warren, and the hardships to which he may be subjected, we must not forget the rights of Mr. Fish. The latter, in redeeming the land complied with the law strictly, and could not have done more had he desired. He had reason to suppose that the money would at once be paid to Ingersoll, the sale terminate, and he be restored to his estate. He, therefore, is perfectly regular and innocent. Mr. Warren, on the other hand, was probably thrown off his guard by the sheriff’s deed to Ingersoll, from searching the sheriff’s office for redemptions. Ingersoll being the purchaser, a deed to him necessarily precludes the idea of intermediate redemptions. [442] The misconduct of tbe sheriff has led to all the mischief, yet we do not see how the rights of Mr. Eish, long previously acquired, can be divested thereby. Note. — Chief Justice Emmett being interested in this case, took no part in the decision. Judge Atwater having, as attorney for the judgment creditor, issued the execution upon which the sale was made, declined to sit in the case until requested by all the counsel on both sides, when he consented. The j udgment will have to be affirmed.