Kiser v. Sawyer

By the Court, Safford, J. The first, and perhaps the most important question which is presented in this case, is as to the construction which should be given to §433 of the code, or rather, the first clause of said section ; and it may be stated thus ; Do the words “lands and tenements,” as there used, include any other lands than those to which a judgment debtor has, at the time of the rendition of the judgment against him, a legal title % The plaintiff in error contends that they do not, and cites as authority, 8 Q., 21. If there was no other provision of our statute bearing upon this point,.such a position might be held to be correct, and the authority cited made applicable. In that case, the clause referred to would not be held to include an equitable interest in real estate. But on turning to ch. 188, Comp. L. 1862, § 1, subdivision 8, we find the following: “The word land, and the phrasé's real estate and real property, include [508] lands, tenements and hereditaments, and all rights thereto and interests therein, equitable as well as legal.” The provision which is found contained in “Au act concerning the construction of statutes,” and applicable generally thereto, was passed by the same legislature which enacted the code, and both acts, the one containing this provision, and. the code, were approved on the same day, and took- effect at the same time. It must therefore be presumed that the legislature deliberately considered the bearing which the provision last referred to would have on the former; and that it was intended so to bear, and to furnish an undoubted criterion or rule of construction, by which to determine what was meant when use was made in the statutes of the' words defined and construed. Giving, then, to these two provisions of law their proper effect, and construing the first as affected by the latter, it must be held to provide and mean that the lands, tenements and hereditaments, and all rights thereto and interest therein,' equitable as well as legal, belonging to the debtor and situate within the county where the judgment is entered, are bound for the satisfaction of such judgment from the first day of the term at which it is rendered. And here, it may be observed, is an instance where the rule contended for by plaintiff in error fails to be applicable or effective. It is true that the legislature adopted section 433 from the Ohio code, but they did not adopt the construction given to it by the Ohio courts, as most clearly appears from a consideration of the other provision named above. The case, then, in 8 Ohio, is not in point. Having arrived at the conclusion that Kiser’s equit-’ able interest in the real estate, as shown by the record, [509] was bound for the satisfaction of the judgment against him, it is proper to inquire whether or no the rules prescribed by the code were followed in seeking to subject such equitable interest to the payment of the said judgment. Referring to those sections of the code which regulate sales of land, tenements, goods and chattels, upon executions, we find that where an equitable interest is sought to be sold, it is not done in the ordinary way; but when this may be done, the course to be pursued is pointed out by §§ 470, 480, 481. It is clear, from § 470, that so long as the debtor is possessed of personal property, or of real property, other than an equitable interest therein, and subj ect to levy, sufficient to satisfy the judgment, such equitable interest cannot be sold; but when it is shown that he has no such property, which may be done by a return of executions indorsed “Noproperty,” or “Unsatisfied,” out of which to satisfy the judgment, then any equitable interest which it is shown he may have in real estate, and which may be ascer-. tained without controversy, or between himself and the person holding the legal estate or interest therein, or lien thereon, such interest may be sold by a receiver in accordance with the provisions of §481. Keeping in view the mode of procedure pointed out in ■these provisions, was the action of the defendant in error in accordance therewith'? We think an examination of the record will furnish an affirmative answer. He caused executions to be issued against the judgment debtor, which were returned unsatisfied, and indeed nothing was made on them. He then m’ade an application to the court, showing what he had done, and the result, and] asks for an order appointing a receiver (§ 480), and ordering the sale of an equitable [510] interest in real estate, of which he makes proof to the satisfaction of the court, that the debtor was possessed of at the time of the rendition of his judgment, and which was, therefore, bound for its satisfaction, as we have before seen. The record also shows that the court was able to ascertain such equitable interest of the debtor, without controversy as between him and the persons holding the legal estate, and that all the parties were before the court. Thereupon the order asked for was granted, the sheriff was made receiver, and the equitable interest ordered to be sold. It is claimed, with much earnestness, by plaintiff in error, that such order was unauthorized until the judgment debtor, or other witnesses, had first been examined in regard to his property, and the discovery made by such means, of his interest in. the real estate. We do not think so. After the judgment creditor had discovered that his debtor had no other property out of which to satisfy his judgment, which he could do by the return of the executions he had caused to be issued “unsatisfied,” and after he had made the further discovery of the equitable interest of his debtor in real estate, we think he had the right to show such facts to the court, in any way which might be satisfactory to such court, and ask for relief. This section 481 seems to be an independent one, and substantially complete within itself as to the remedy intended to be afforded by it. It provides that if it shall appear that the judgment debtor has any equitable interest in real estate in the county in which the judgment is entered, &c., the receiver may be ordered to sell and convey such real estate, or the debtor’s interest therein. How the fact of the debtor’s having [511] such interest shall be made to appear, which fact is preliminary to the proceeding .in the section contemplated, is provided for in §472, viz: “Upon proof by affidavit of the judgment creditor or otherwise, to the satisfaction of the court.” But it is further objected to this proceeding, that it ought to have been brought before a judge, and that such judge, while sitting as a court, could not entertain it. This can be no good reason, as it seems to us, for making such' a distinction. It certainly can make no difference as to results in such cases, whether the judge acts as a judge alone, or as a court. Besides, the court, the greater, includes the judge, the less. The judgment of the court below, in making the order complained of, is affirmed. All the justices concurring.