Hartman Manufacturing Co. v. Luse

Bishop, 0. J. The essential facts are not in dispute, and may be stated as follows: Defendant W. I. Luse was he owner of certain lands in Van Burén county, which493 were incumbered by mortgage held by one Irish. This mortgage was foreclosed, and the lands sold under special execution November 9, 1901. This plaintiff, a judgment-creditor of said Luse, caused a general execution issued on bis judgment to be levied upon Luse’s “equity of redemption and right of redemption” from said foreclosure sale,, and such “equity of redemption and right of redemption”’ was sold to plaintiff under such execution on Décmber 4r 1901. Thereupon this action was brought by plaintiff for possession of said lands. It is the contention of counsel for appellant that the sale of the right of redemption carried with it the right of possession; that is, that the sale of the redemption right, was, in legal effect, a sale of.the possessory right also, and. this notwithstanding the latter right was not, in terms,, included in the levy and sale. . The equity of redemption from the lien of the Irish mortgage was cut off when the-foreclosure sale took place. Thereafter Luse had only the-statutory right to redeem. By section 4045 of the Code it, is provided that “the debtor may redeem real property (from execution sale) at any time within one year from the day of sale, and will, in the meantime, be entitled to> the possession thereof,” etc. Here is given the right to-redeem and the right to continue in possession. Speaking-in general terms, the right of redemption and the right of possession are separate or independent rights, the one not-being necessarily involved in the other; that is, there may be a right of redemption independent of any right of possession, and vice versa. It is the contention of counsel for appellant, however, that, inasmuch as the statute-alone confers the right, we must resort to the terms and provisions thereof to determine the nature and character of such right; and in this we may agree. But counsel say, in effect, that a reference to the language of the-statute makes it manifest that the right of possession was. not intended to be a separate or independent right, but, [494] that the same is included in and a part of the right of redemption, so that a sale or transfer of the latter of necessity carries with it the former. And this contention is fortified by pointing out that by said section of the statute it is also provided: “No party who has taken an appeal, or stayed execution on the judgment, shall be entitled to redeem.” The argument is that, where there is no right of redemption, there is no right of possession, and that it necessarily follows that the latter right must be included in and is a part of the former, because the right to possession in the debtor exists only where the right to redeem exists, and then only because the statute gives him that right as a part of his right to redeem. With the contention thus made we are unable to agree. True, the right of possession ceases if there be an absence of the right to redeem — that is, if the sale be absolute — - and to that extent the right of possession may be said to be in a sense dependent in character. Before the equity of redemption was foreclosed and cut off, there was the common-law right of possession. Now, it is the effect of the statute — and this is the meaning of the language employed — to give a further right of redemption of one year, and to provide that, wherever such right of redemption exists, the right of possession shall continue until the end of the redemption period. In other words, as to possession the statute provides for the extension or continuation of a right .theretofore enjoyed, rather than the creation of a right having no previous existence. Where the sale is absolute, there the right of possession ceases,- and this is because a right of possession is essential to an absolute title. So far the statute does no more than to declare the common-law rule. But where title has not yet become absolute, and is liable to be deféated entirely (as by payment in redemption), there is no reason why possession may not be withheld until the expiration of the period within which the title is held in abeyance; and this, we [495] think, is what was intended by the statute. Now, looking •at the language thereof, to our minds there is nothing which seeks to determine or in any manner control the ■enjoyment of the rights conferred, or otherwise dictate terms in respect thereto. Certainly there is nothing anywhere in our law which forbids the disposition of such rights by gift, sale, or assignment, and, as we think, the -one may be thus disposed of without any effect being had upon the other. Most certainly, one having a right of redemption may dispose of the same, and reserve possession ■to himself during the continuance of such right; or he may dispose of the right of redemption to one party, and give ■over right of possession to another. It would hardly be •contended that one to whom had been assigned the right of possession merely could, in virtue thereof, assert any rights in respect of redemption; and yet, if there be but ■one right, which includes redemption and possession, such ■a result would, of necessity, follow. The precise question under consideration is one of first impression, as we have not been called upon heretofore to determine it. Our rattention is not called to any cases arising in other states based upon a similar statute. Having given the question careful consideration, we are content to hold that the rights granted by the statute are not so interwoven one with the other, or so dependent the one upon the other, "that they may not be disposed of separately. The corollary follows that a sale of one does not ipso facto carry the other. Holding this view, it follows that, as the pres■ent case is not based upon any sale or transfer of the right of possession, the plaintiff cannot recover. And this conclusion makes it unnecessary for us to consider the arguments and authorities pro and con as to the right of an execution creditor to seize upon and sell property rights of the character in question. The judgment of the court below was right, and it is _AEEIRMED,