Jackson, ex dem. Knapp & Haight v. Budd & Poor

7 Cow. 658

• Court: New York Supreme Court
• Decided: October 15, 1827
• Status: Published

Opinion

Curia, per Woodworth, J.

(After stating the facts.) After the sale, junior judgment creditors had a right to. redeem. Knapp, who held the judgment next in seniority to Haight, did not lose his right to redeem in consequence of his becoming a purchaser under Haight’s j udgment. He acquired a right,, by the sale, to the title of the debtor, at the end of 15 months, if- there was no redemption. He was, in this respect, placed in the same situation as any stranger would have been, who had happened to become a purchaser. Who might, or might not redeem, were questions entirely disconnected with the conditional right acquired by the purchase. That would become perfect, if a valid redemption should not be made. The right and manner of redeeming, is defined and prescribed in the 3d section of the statute of April 12th, 1820, (sess. 43, ch. 184;) and by that the parties must be governed. After a sale, any judgment creditor may redeem against the purchaser, * without reference to the priority of liens.

(a) Poor, the junior judgment creditor, exercised this right; but it was liable to be defeated by a redemption under Knapp’s judgment. The act expressly declares that any other creditor, having a decree or judgment, may redeem by paying the sum advanced by the first redeeming creditor, with 7 per cent, interest, and also satisfying any prior judgment which such creditor may have against the defendant. It follows, that when any redeeming creditor subsequent to the first, has a prior judgment, he is bound to pay the amount of the purchase only, with interest. It is only where the judgment of the subsequent redeeming creditor, is junior to the judgment of the preceding redeeming creditor, that he is bound to pay as well such judgment as the purchase money. Here Knapp had a prior j udgment that was a lien; and was entitled to redeem the lands from Poor by paying the money advanced by him, and interest. It seems to me that no doubt could have arisen on this construction of the act, had it not been for a remark of the chief justice in Van Rensselaer v. The Sheriff of Albany, (1 Cowen, 510.) He there says, “ If a junior creditor become a purchaser, though under a senior judgment, he must bid the amount of the older execution and of his own lien, if he intends to secure himself out of the property sold.” That point, abstractly and broadly stated, was not before the court; but a mortgagee, who had purchased at the sheriff’s sale, claimed the right to have his mortgage satisfied, which was intermediate the judgment under which the sale was made, and the judgment under which S. Van Eensselaer had redeemed. In reference to the right of the mortgagee, the remark was well founded; and probably was intended to apply to such a case only; for the court held that the mortgagee, not having a judgment or decree, and not being a grantee within the act, could not redeem. They did not put their decision on the fact that the mortgagee was the purchaser under the judgment.

*Upon this view, I have no doubt of Knapp’s right to redeem.

But he omitted to avail himself of this right; and thereby permitted the redemption of the junior judgment creditor to take effect. On the facts before us, therefore, it appears that the sheriff had no authority to execute a deed to Knapp.

Judgment must be rendered for the defendants as to the 5 acres; and for the plaintiff as to the residue, according to the stipulation in the case.

Buie accordingly.

Vid Ex parte The Peru Iron Company, ante, 540, S. P.