Hammond v. Horton

Macfarlane, J. This suit is ejectment to recover a small tract of land being a part of a tract of four hundred and eighty acres located under a New Madrid certificate (number 161), and known as United States survey number 2500. The New Madrid claim was located by Rufus Easton, as assignee of Joseph Hunot, in June, 1818. The patent from the United States was issued to said Hunot or his legal representatives in 1859. In September, 1818, Easton as assignee of Hunot, made a bond for title to Samuel Hammond and James J. Wilkerson. On the eighth day of October, 1823, the land was sold by the sheriff to Relfe and Chew under an execution on a judgment, in their favor and against Hammond, dated in May, 1823. Defendants claim under a deed of the sheriff made in pursuance of — 157 — this sale. Plaintiffs claim title under a warranty deed from Easton to Hammond dated September 29, 1823. The title, as thus briefly detailed, has been passed upon in former appeals in this and other cases. Hammond v. Johnston, 93 Mo. 198; Hammond v. Gordon, 93 Mo. 223; Block v. Morrison, 112 Mo. 346. A full statement of the facts can be found by an examination of these cases. Under these decisions the title was adjudged to be in defendants. On a retrial of this case the following new facts were developed: Three judgments were rendered against Hammond, two of them May 4, 1820, and the other April 26, 1821. Executions were issued on these judgments, and August 24, 1821, the land was sold thereunder to Robert Simpson, to whom the sheriff gave a certificate of purchase under the law then in force. Robert Simpson, under date of January 20, 1824, by quitclaim deed conveyed the land to Relfe and Chew. In the former decisions it was held that the title bond, from Easton to Hammond, vested in the latter an equitable right to the land, which was vendible under execution; that the sheriff’s sale of October, 1823, under execution upon the judgment against Hammond and the deed thereunder, vested in Relfe and Chew, the purchasers, the equitable rights of Hammond; and the patent thereafter issued, by the United States, to Hunot or “his legal representatives,” vested the legal title in the defendants, who are the grantees of Relfe and Chew. Plaintiffs now insist that the title of Hammond was cut off or suspended by the previous sale to Simpson, and, at the time of the sale to Relfe and Chew, Hammond had no interest whatever in the land, and the sale carried none to the purchasers. That no deed having been made under the sheriff’s sale to Simpson, — 158 — the title at the termination of the period for redemption became revested in Hammond, and afterward in plaintiffs, who are his heirs and grantees. An act of the general assembly approved June 28, 1821, provided that, on sale of land under execution, the sheriff, instead of a deed, should give to the purchaser a certificate in writing, describing the land purchased, the sum paid therefor, and the time when the purchaser would be entitled to a deed unless the land should be redeemed. Within ten days after the sale the sheriff was required to file a duplicate of such certificate in the office of the clerk for record. The act further provided that it should be lawful for any defendant, his heirs, executors, administrators and assigns, whose lands should be sold by virtue of any execution within two and one half years from the date of such sale, to redeem such lands by paying to the purchaser thereof, his executors, administrators or assigns, or to the sheriff for the benefit of such purchaser, the sum of money paid with interest, and still further, that it should be lawful for any creditor who should have a judgment against any such defendant to redeem such land within three years in default of such defendant to redeem the same; that when such creditor should redeem he should be entitled to acquire all the rights of the original purchaser; that if such land should not be redeemed either by such defendant or by such creditor within three years from the date of such sale, it should be the duty of the sheriff to execute a deed to such purchaser; that if any such creditor should redeem as aforesaid, it should be the duty of the sheriff to execute a deed to such creditor as the assignee of the original purchaser. 1 Terr. Laws, p. 778. This law was repealed by an act approved January 11, 1822. 1 Terr. Laws, p. 862. The repealing act contained this proviso: “Nothing herein contained — 159 — shall be construed to render invalid any proceedings had under the authority of the said recited act before the repealing thereof. ’ ’ The sale to Simpson was made while this law was in force, and the sheriff gave him the required certificate. The sale to Relfe and Chew was made after the repeal of the law but before the time allowed for redemption from the Simpson purchase had expired. The quitclaim deed from Simpson to Relfe and Chew was also made before the expiration of the time for redemption. Plaintiffs now claim that the sheriff’s deed to Relfe and Chew is void under a proper construction of the redemption law. It is said that Hammond had the exclusive right to redeem for two and one half years after the date of the sale, during which time another judgment creditor had no right to proceed against the land by sale under execution or to redeem from the sale to Simpson. That after the expiration of that period the creditor could only proceed by redemption and by taking a deed from the sheriff under the sale to Simpson. There would be much force in the argument if the redemption law had been in force when the sale to Relfe and Chew was made. But the law was repealed long prior to the rendition of the judgment under which they purchased. It becomes necessary to inquire what remedies were open to Relfe and Chew under their judgment. The repeal of the special redemption law left the general law respecting the law of land under execution in full force except as to persons who had secured rights under it. Hammond had the right to redeem his property from the sale to Simpson, and Simpson had the right to a deed under his purchase in case the land was not redeemed. The repeal of the law did not affect these rights. The judgment of Relfe and Chew — 160 — was not l’endered until after the repeal of the law, and they took, by virtue of the judgment, no rights under the repealed law. They had no right to redeem from the Simpson sale in the manner provided by the law, nor could they enforce their judgment by execution so as to defeat the rights of Simpson. Under the general law a judgment creditor had the right to an execution, and, thereunder, to make a sale of any property belonging to the debtor which was subject to execution. Was the land as it stood at the date of the sale to Relfe and Chew subject to sale “without rendering invalid any proceedings” had under the repealed law? The certificate of purchase delivered to Simpson by the sheriff gave him the right to a deed if neither Hammond nor any of his judgment creditors redeemed within the prescribed time. A sale under a junior judgment could not take away or affect that right. So the sale under execution to Relfe and Chew did not render invalid the previous sale to Simpson. Under the proceedings, which resulted in a sale .to Simpson, Hammond only secured the personal right of redemption for two and a half years. The right of judgment creditors to redeem after that time was given as a remedy to such creditors and not as a right to Hammond. By the repeal of the redemption law subsequent judgment creditors were remitted to the general law for enforcing their judgments. It is insisted that the rights given to Simpson and Hammond under the redemption law precluded a sale under a judgment subsequently acquired by other creditors. We do not think so. The act gave, not only to Hammond, but to his heirs and assigns, the right to redeem. The act, therefore, necessarily contemplated the right in Hammond to sell and transfer his interest to another. He continued to hold the — 161 — equity of redemption, which he could, by his own act and deed, transfer, and whatever interest an owner could transfer by deed was subject to sale and conveyance under execution. This was distinctly held in Block v. Morrison, 112 Mo. 350. See, also, McClean v. Harris, 14 Lea, 513; Thayer v. Coldren, 57 Iowa, 113. The sale under the execution operated as a conveyance of all the interest of Hammond, including the right of redemption, The quitclaim deed from Simpson operated as a release of his rights to Relfe and Chew, and the entire interest of Hammond became vested in them, freed from the rights of Simpson under his certificate of purchase. The title of defendants, therefore, was not affected by the sale to Simpson, and the judgment for defendants was proper under the former decisions of this court wherein the same title was involved. Hammond v. Johnston, 93 Mo. 198; Block v. Morrison, supra. The judgment is affirmed. Barclay, J., does not sit. The other judges of this division concur.