Erwin v. Schriver

19 Johns. 379

• Court: New York Supreme Court
• Decided: January 15, 1822
• Status: Published

Opinion

Spencer, Ch. J.

delivered the opinion of the Court. We arg decidedly óf opinion, that Erwin has no right to a deed for all the lands thus purchased. His lien never extended to the whole, nor any further than to the individual right of the tenant in common, against whom he had a judgment. It never could have been the intention of the legislature to give to a creditor a right of redemption to any other lands, than such as were subject to the lien of the judgment creditor who offered to redeem. Beyond such lands, he has no pretence to step into the place of the purchaser. The right to redeem can be co-extensive only with the lien.

There are serious difficulties in allowing a redemption of part of the premises only. The purchaser has a right to object to receive part of the purchase money only, retaining part of the land. His interest is depreciated by making him a tenant in common; and he can urge, with great force, that he has a right to retain bis purchase, unless some creditor, having a right to redeem the whole, shall refund to him his purchase money and interest. There is, also, a difficulty, as regards the sheriff: he has sold the land as an entirety, and he would be obliged to give two deeds, as upon distinct sales, when no stich sales took place. The sheriff has not the means of ascertaining the extent of the interest of the tenant in common, whose lands have been sold a second time; nor does the Court possess the means of doing so. We think the case presented by Erwin, is one not provided for by the statute. If it is within the equity of the act, as to which we give no opinion, the Court of Chancery alone can afford redress.

Motion denied.