Rogers v. Edmunds

The opinion of the court was delivered by Richardson, C. J. This is a very plain case. As the right in equity, to redeem the land, was not duly advertised for sale upon either execution, within thirty days after judgment, both the attachments, by virtue of the original writs, may be considered, under the statute of July 3, 1822, making [73] provision for the sale on execution of such rights, as dissolved. In order to maintain this action, then, the plaintiff must show, either that his execution was first in the hands of the defendant, which would, under the circumstances, entitle him to the proceeds of the sale of the equity of redemption, or that Horner abandoned all the right he had acquired by having his execution first in the hands of the defendant. But it is not pretended that the plaintiff’s execution was first in the hands of the officer. It is conceded, in the argument, to have been otherwise. Horner then became entitled to the proceeds of the sale, unless he, in some way, had relinquished his right. The only question is, then, did Horner relinquish his right ? We see nothing, in the case, that shows such a relinquishment on the part of Horner. The only thing, from which such a relinquishment is attempted to be argued, is, that he said, on one occasion, that he would not levy upon the equity of redemption till he could see counsel and be further advised. But this does not show an intention to abandon his right. It shows clearly he intended to proceed advisedly, and in such a manner as to secure his right. It, therefore, seems to us that the defendant was bound to apply the proceeds of the sale of the equity of redemption in the manner he has done. It was wholly immaterial upon whose execution the sale was made. He, whose execution was first in the hands of the officer, was entitled to the proceeds of the sale. 5 Cowen, 390; 4 ditto, 411; 12 Johns. 162; 18 ditto, 363; 17 ditto, 116; 13 ditto, 255; 8 ditto, 20. 1 Pick. 521; 2 ditto, 586; 7 ditto, 550; 11 Johns. 110; 1 D. & R. 307; 7 Taunton, 56; 2 Car. & Payne, 356; 1 D. & E. 729. Verdict set aside and a new trial granted,,