Thomas against Crofut

Thomas against Crofut. A party who redeems land sold on execution, after receiving the sheriff’s deed, can maintain an action in the nature of waste, or of an action on the case, against any person who, intermediate the sale and sheriff’s deed, cuts and takes timber from the premises. So Held, where the party who bid off the premises at the sheriff’s sale cut and carried away the timber with the consent of the judgment debtor who was in possession. The action was commenced in April, 1853, and was to recover damages for the wrongful cutting and carrying away of timber from lands situate in Chemung county. The cause was tried before a referee. It was proved that one Howland, in 1851, owned the land in question ; and that on the thirty-first of May in that year the same was sold by the sheriff óf Chemung county by virtue of an execution issued upon a judgment theretofore recovered against him in favor of Field & Hastings. On such sale the premises were bid off by the defendant in this action, to whom the sheriff executed and delivered a certificate of the sale. On the 31st of August, 1852, the plaintiff in this action, by virtue of a judgment recovered in his favor against Howland, junior to the one on which the sale was made, redeemed the premises; and subsequently and before the commencement of this action the sheriff executed to the plaintiff a deed of the premises pursuant to the sale and redemption. Intermediate the sale and redemption, Howland, the judgment debtor, was in possession of the land; and during that time the defendant, with the conseñt of Howland, cut and carried from the land timber. The counsel for the defendant insisted that, as the plaintiff was neither in possession nor entitled to the possession when the timber was cut, he could not recover. The referee overruled the objection and assessed the plaintiff’s damages at $250.50. The defendant’s counsel excepted. There were some other questions in the case, but they are not of general interest. Judgment was perfected for the damages found by the referee and costs, which, on appeal, was affirmed at a general term in the sixth district. The defendant appealed to this court. J. K. Porter, for the appellant. H. Hogeboom, for the respondent. [MAJORITY — Hubbard, J. Comstock, J.] Hubbard, J. By the express provision of the statute, a sheriff’s deed, given on the sale of real estate on execution, is made to relate to the time of sale, for the purpose of an action to recover for any injury to the property subsequent to the sale. The legal estate is deemed vested in the grantee by relation as of the time of the sale. (2 R. S., 373, § 61.) The language of the statute is general, giving the right of action to the sheriff’s grantee to redress any injury committed intermediate the sale and conveyance. The action is not limited against the debtor or other person who may have been in possession of the premises, but may be brought against any person committing the wrong. (2 R. S., 336, § 20.) The action is in no respect possessory, like trespass, where possession or the right of possession at the time in the plaintiff is essential.- It is a statutory remedy to recover for the waste, by whomsoever committed. The decision in the case of Rich v. Baker (3 Denio, 79) has no application te this case. That was an action of replevin. It was held that the action was not maintainable, on the technical ground that replevin in the cepii could only be brought where trespass would lie. But the present action is a special action on the case, in the nature of waste, expressly authorized by the statute. The plaintiff recovered, as a measure of damages, the value of the logs and timber cut and carried away. This was right. It seems to me, under the general language of the statute, the specific action of trover might have been brought, as intimated by Chief Justice Bronson in Rich v. Baker. Under the Code, however, the better form of action may be-the one adopted in this case, to set out in the complaint the plaintiff’s title and the particular injury committed by the defendant, within the statute. [After discussing some other exceptions, the judge concluded that none of them were well taken, and that the judgment should be affirmed.] Comstock, J. The statute (2 R. S., 373, § 61) provides that a judgment debtor’s title shall not be divested by sale under execution until the expiration of fifteen months from the time of such sale, but if no redemption takes place then, that the grantee in the sheriff’s deed shall be deemed vested with the legal estate from the time of the sale for the purpose of maintaining an action for any injury to such real estate. The plaintiff in this case is the grantee of the sheriff, and after the maturity of his title under the sale, he brought this suit for injuries to the land done after the sale and before the fifteen months expired. The action is, therefore, expressly authorized by the statute, and hence there is no force in the objection that the plaintiff at the commencement of the suit was not and never had been in possession of the land. If the suit were technically in trespass, according to the former division of actions, the want of possession at the time of the wrongful entry might be fatal. (Rich v. Baker, 3 Denio, 79.) But the objection would be to the form of the remedy merely. These distinctions of form no longer exist, and in the present case the injury sued for is accurately described in the complaint. The defendant wrongfully cut down and carried away standing trees and timber after the sheriff’s sale, and that is precisely what he is charged with. The plaintiff was not the original purchaser at the sheriff’s sale, but under the statute acquired the purchaser’s title as a junior judgment creditor of the same debtor. The statement in the record of what took place on the trial shows that “ the defendant admitted the redemption by the plaintiff of the premises described in the complaint, and also what the sheriff would swear to if he were present.” The fair construction of this admission is, not merely that the plaintiff went through the ceremonial acts pointed out by the statute, but that the redemption, so called, was a valid one, which entitled him to the sheriff’s deed. After discussing the other questions, the judge concluded that the j udgment should be affirmed. Judgment affirmed