Curtis v. Millard & Co.

Lowe, J. Two questions arise upon the facts as above stated: 1. Was the defendants’ judgment a lien upon the real estate sold upon the execution in favor of Gregory, Tilton & Co.? 2. If so, could the defendants enforce this lien against the grantee of tbe execution debtor without first redeeming the property from tbe sale to tbe said Gregory, Tilton & Co.? The appellant holds to the negative of both questions. In regard to the first, he insists that after a sheriff’s sale of a debtor’s property, the debtor has nothing left in the property sold except the naked right of redemption, which is not an interest that can be seised and sold, nor upon which a subsequent judgment can operate as a lien. And then, again, if the defendants should be held to be lien creditors, they should have redeemed tbe property purchased by Gregory, Tilton & Co., within nine months from tbe date of their purchase, and having failed to do so they can now take nothing by their supposed lien, especially against the grantee of tbe judgment debtor. Under our statute tbe legal estate of a judgment debtor is not divested by a sale of bis land under execution, until after tbe expiration of tbe time for redemption, and the title has vested in tbe purchaser by deed from tbe sheriff. Prior to tbe delivery of such deed (which cannot be made [130] until after the time for redemption runs out), the legal estate, the possession, and usufruct, all remain with the execution debtor, and is an interest of value, or such an estate as maybe the subject of a lien, or of a sale under an execution, or of a conveyance by deed from the debtor. If, during the interim between the date of the sale and the delivery of the sheriff’s deed to the purchaser, other judgments are rendered against the debtor, it has been repeatedly held that they attach as liens upon the debtor’s interest, which is one of real value, consisting not only of the legal estate, rents and profits, but the consequent right to discharge the lien and make his estate absolute. If, under such circumstances, the debtor should sell his right and interest in the premises, the purchaser would take it'subject to all the liens and incumbrances that existed upon the same in the hands of the vendor. Now, the courts have frequently declared that the. purchaser of lands sold on execution acquires by his purchase no more than a lien upon the lands for the amount of his bid, and interest during the time allowed for redemption. He acquires no right or estate upon which he could maintain ejectment, or which could be levied upon and sold for his debts; it is simply an inchoate or conditional right to an estate, liable to be defeated any time within one year by the payment of the purchase-money and interest. In the case at bar, the plaintiff’s purchase of Downing & Foster was no less subject to the lien of Millard & Co., than that of Gregory, Tilton & Co.,’for both liens rested alike upon the property at the date of his purchase. The failure of Millard & Co., to redeem from Gregory, Tilton & Co., within nine months lost them that right, but it did not have the effect to render imperative their lien against his debtors or their grantee, in the event either should redeem within the time allowed them by law. These principles are fully sustained by the following authorities, made under statutes not essentially [131] different from ours, as it respects the questions involved in this case. Vaughn v. R. & S. Elly, 4 Barb., 159 ; Smith v. Colvin, 17 Id., 157; Van Rensselaer v. Sheriff of Onondaga County, 1 Cow., 443-501; Bissel v. Payn, 20 John., 3; McLagon v. Brown, 11 Ills., 519; Titus v. Lewis, 3 Barb., 70; 7 Cow., 540; 2 Wend., 507. Affirmed.