In the matter of the application of Timothy Hurd against Magee, Sheriff of Steuben

In the matter of the application of Timothy Hurd against Magee, Sheriff of Steuben. On the 21s£ November, 1818, a judgment Was docketed in this Court, in favour of Reeve against Smith, for $192,09, on which execution issued, tested Oct. 9th of the same year, returnable at the ensuing January term, directed to the Sheriff of Steuben ; who, on the 19ZÁ of January, 1819, sold the farm on which Smith then resided, to Hurd, and executed a deed for the same to him. This was before the act which allows the redemption of lands sold upon execution had passed; On the 18th October, 1814, a judgment for $103,88, was docketed in this Court, in favour of one Peterson, against the same Smith. On this judgment execution issued; by virtue whereof Magee, Sheriff of Steuben, on the 30th Nov. 1822, sold the same farm to Hurd, for $159,06, and gave a certificate of this sale, &c. April 6th, 1823, a judgment was docketed in this Court, in favour of Henry Welles, against Smith, for $210 : and on the 3d Oct. 1820, a judgment was docketed iti this Court, in favour of Baker and another, defendants, at the suit of Smith, for $33,55 costs. After the expiration of 15 months from the sale by Magee, Hurd demanded his deed of Magee, which he declined giving, having previously executed a deed to Welles, who had redeemed as creditor by judgment, and as assignee of the judgment in favour of Baker. On affidavits of these facts; A judgment creditor has no right to redeem under the 3d section of the act of April 12th, 1820, (sess. 43, eh. 184) unless his judgment be a lien on the land which he seeks to redeem. It carinot he a lien where the land of the debtor is sold and conveyed either by the debtor or by the sheriff, be"fore the judgment of the creditor claiming to redeem is docketed. And tho’ it be insisted that" the sale was fraudulent and void as to creditors, the court will not try this question on motion. J. C. Spencer, moved for a mandamus requiring the Sheriff to execute a deed to Hurd. J. A. Collier, contra, read an affidavit, stating that the judgment in favour of Peterson was in the Steuben Common Pleas ; and that on the sale in 1822, Hurd and one Tutliill became joint purchasers; that Welles redeemed after a year, and before 15 mouths from this sale ; that Smith continued in possession of the farm in question till after Welles? judgment was obtained ", and that there was a material variance between the judgment and execution under which Hurd ori= g'nallj purchased. He argued that though Hurd had á right to insist on his first purchase, he cannot do so at this stage of the proceeding. He should have confined himself solely to the right which he thus acquired. But he has waived his former right; and must now be confined to that which he acquired under the sale of 1822. After thus making his election, it is in the power of any judgment creditor to come in and redeem, if his judgment is of a date anterior to the expiration of 15 months after that sale. He Submits to the elder and better title. This he had a right to'do, and might have redeemed as between us and PetersorU He admits that he acquired no right upon' his first purchase; and, indeed, this is true independent of his second, as it respects the creditors of Smith, who continued in possession of the farm long after the first, which was evidently fraudulent. We were right in disregarding it, and redeeming. Hurd had a right, to redeem! from us, as assignee or grantee of thé land, but the time for this has gone by. The year—the! 15 months have expired. Had he redeemed as grantee, the second sale would have been void. (Sess. 43, ch. 184, s. 2.) What right has"he to lie by, and compel us to suffer his taking a title under the elder judgment ? Can Hurd, having waived his right to redeem, say, after the year and his rights aré gone, “ I am grantee, and ' yét have a: right, to á deed under the senior' judgment, in virtue of my second purchase His "remedy would have been complete without this. If evicted, either by a stranger or any other person, the statute, (1 R. L. 504) declares that the money which he has paid shall be refunded. He waives all right to that remedy, by his second purchase,, because actual eviction is the sole foundation upon which it tvould rest. This Court have decided that the judgment is? a lien, though obtained more than a year after the' sale.' Thus our right is complete, as it respects the second sale and will’the Court suffer Hurd to lie by till his right is gone as grantee, and then come forward in the character of a purchaser ? Will such a course accord with the spirit of the act to which this Court have given a construction ? “ This statute, says the Chief Justice, in Van Rensselaer v. Sheriff of Albany, (1 Cowen’s Rep. 510) “ is evidently remedial; and, in its exposition, it is our duty to bear in mind the evil intended to be prevented, and the remedy proposed ; and so to construe the act as to suppress the evil ánd advance the remedy.” Are we not within the intention of the legislature ? Will not the object of the statute, as avowed by alt the Court, which is to keep up a perpetual auction, be in this manner the most effectually promoted ? Other judgment creditors ought not to stand peaceably by, and see Hurd invested with this additional title, which fortifies his first, and renders him secure in a purchase which was evidently fraudulent. [Sutherland, J. But it is necessary that you should shew your judgment to be a lien on this land. How can this be ; when the title of Smith was sold before the passage of the act, and a deed given which passed the title ?] Collier, Smith was still suffered to continue in possession. Our judgment found him there; and, at any rate, it attached upon his possessory interest, or whatever interest he had. He could not set up an outstanding title in Hurd, or any one else, to defeat an ejectment founded on a purchase under our judgment against him. It would be no more than fair to infer that he had acquired a title since the first sale. We cannot be conusant of what his right is, and, at any rate, Should not be concluded by this summary application. We say Hurd’s purchase was fraudulent, and that the sale was upon an irregular execution. The whole was void ; and the Court would not order an amendment so as to conclude us. They will rather incline to keep the right of redemption bpen to all the creditors. They should leave Hurd to his elder title. He has no right to his double character. It is enough that he claims under a fraudulent sale, or doubtful title. The Court should not deprive us of our right to contest it. I agree that the language of some of the Court, in Dickenson v. Gilliland, is against the idea of our having a lien. But the sale, in that case, to Prindle, was. absolute and honest. Here, we say, the sale was not only fraudulent, huí it was subject to an elder judgment, under which a subse-quent sale takes place. Besides, in that case, the grantee’ was in possession. Spencer, in reply. Welles has- no- right to appear here at all ; of, if otherwise, we have a prior right to redéem. The" sale under the first judgment was absolute and binding upon Smith, as if he had executed the deed himself, subject, to be sure, like every other sale, to be defeated by a paramount title, either by judgment or otherwise. How can Iiurd’s' acts be made to operate as a waiver of rights which he bad 'acquired by deed? This is the first time, I believe, it was- • ever contended that a man forfeited his right to land by the purchase of a- judgment, or bidding' in: under a judgment with the view to fortify and sustain his title. The course of Welles was plain. He should'have attended-the sale, and-become a purchaser himself.- It is said that Smith was in possession, but this was no evidence of title. Admit that he could not controvert Welles’ title in an action of ejectment: a recovery in that action is not conclusive evidence of title. It relates merely to the' right of possession. It is not enough for Welles to say that he will contest the right acquired'under Reeve’s judgment; without shewing a single fact to impeach it; for I presume the variance between the judgment and execution is not se-' riously insisted on. A- subsequent judgment Creditor cannot' object this. If any thing serious was intended on the head* of fraud, why was- not the proper remedy resorted to ? Why was not a bill in Equity filed, in order to sift the fraud ? The* variance is plainly amendable. Fraud is the only ground of opposition at law or in- Equity, and the right to relief, in eh ther case, is gone, by our purchase. It is said that a perpetual auction' is' to be kept up. Between whom ? Those creditors, only, whose judgments area lien upon the land. It has been twice decided, that where there is no lien there is no right to redeem. (Erwin v. Schriver, 19 John 379. Dickenson v. Gilliland, 1 Cower's Rep. 481.) And a sale under Hurd’s judgment, before the reclemption act, divested Smith's title, so that there was nothing upon which Welles' or Baker's judgment could operate. [MAJORITY — Curia.] Curia. This motion must be granted. The Sheriff’s sale and conveyance under Reeve's judgment divested the title of Smith, the judgment debtor. He then had no interest upon which the subsequent judgment, either of Baker or Welles, could become a lien. Having no -lien, it is well settled by the authorities cited, that Welles had no right to redeem. Then it is said, that the judgment of Reeve, and the purchase of Hurd, were fraudulent as to the other creditors of Smith; but the suggestion is almost entirely gratuitous. There is nothing in the affidavits shewing any thing like fraud ; yet suppose a case of fraud made out, we could not try it in this summary form. Welles should have caused the proceedings to be stayed, or filed his bill in Equity, and prevented the second sale, till the question had been settled whether his judgment could be let in, on account of the. fraud, or not. The Sheriff must execute the deed to Hurd, as it is applied for ; but we do not interfere with the conveyance to Welles, It can do no harm, if, as we hold, it passed nothing. Motion granted.