Dalton v. Brown

HART, J., (after stating the facts). It appears from the statement of facts that the mortgage of Bispham to the Randolph County Bank was the first lien on the land in question, and it is conceded by both parties that the mortgage lien is paramount to both of the judgment liens. Subsequent to its execution, on January 20, 1915, Schna-baum obtained a judgment against Bispham. Under section 4438 of Kirby’s Digest, this judgment became a lien on the land in question, subject to the mortgage lien, from the date of its rendition, and under section 4439 the lien continued for three years. The judgment creditor had an execution issued and levied on the land in question in February, 1916. Dalton became the purchaser at the execution sale. Section 3292 of Kirby’s Digest provides that when any real estate, or any interest therein, is sold under execution the same may be redeemed by the debtor from the purchaser or his vendee, or the personal representatives of either, within twelve months thereafter. So it is beyond question that Bispham had the right to redeem from the execution sale at which Dalton became the purchaser. Between the date of the rendition of the first judgment and the execution sale under it, the Pocahontas State Bank obtained judgment against Bispham and levied upon and sold the land in question under execution to satisfy its judgment. Brown became tbe purchaser at the execution sale. Bispham failed to exercise his right to redeem from that sale within the year. It is claimed by Brown that he being the purchaser at the execution sale under the junior judgment, and that Bispham, not having redeemed from that sale, that he succeeded to the rights of Bispham and had the right to redeem from the execution sale under the senior judgment. In the case of Turney v. Watkins, 31 Ark. 429, the court held that a purchaser at execution sale of the equity of redemption in real estate, succeeds to all the rights of the mortgagor, among which is the equitable right of redemption by paying the mortgage debt. Under this authority a purchaser at an execution sale of the equity of redemption in real estate has a right to redeem from the mortgage. The reason is that he succeeds to the rights of the mortgagor. If the purchaser at the execution sale succeeds to the rights of the mortgagor and has the right to redeem from the mortgage, there seems to be no good reason why he should not by analogy have the right to redeem from the sale under a senior judgment where he purchases at an execution .sale under a junior judgment. In other words, if he succeeds to the right of the mortgagor to redeem from the mortgage,’he should also succeed to the mortgagor’s rights to redeem from sale under execution. If he does not, his right to redeem from the mortgage would not avail him anything in cases like the present one. It would do Brown no good as purchaser at the execution sale under the junior judgment to redeem from the mortgage debt of Bispham if he could not also redeem from the execution sale under the senior judgment. In Porter v. Watson, 76 Pac. 841, the Supreme Court of Kansas held that one who purchases real estate at execution sale subject to a prior judgment lien and obtains a valid sheriff’s deed, may redeem as owner from a subsequent sale under such prior judgment. "We are of the opinion that the court properly held that Brown had the right to redeem as succeeding to the rights of the owner from the sale /to Dalton under the senior judgment and the decree of the chancellor will be affirmed.