Van Rensselaer v. Sheriff of Albany

1 Cow. 501

Opinion

Woodworth, J. (after stating the facts.)

The judgment of Sanders Van Rensselaer, though after the sale, was a lien upon these lands, and entitles him to redeem as judgment creditor. It was objected, on the argument, that there was a stipulation not to take out execution upon this judgment. This was for the defendant’s benefit, and does not prevent its operating as a lien upon the real estate. Lansing, being a mortgagee of these lands, and the assignee of another mortgage on the same lands, chooses to become the purchaser. He died, and his representatives now insist that, in his right as a mortgagee, they are entitled to redeem in preference to Sanders Van Rensselaer. In limine there is a difficulty which interposes against setting up this claim ; for, as mortgagees, they have never attempted to redeem. But we are clear on the other ground, that they were never, as such, entitled to redeem. This is a casus omissus' in the statute. The right is claimed under the 2d section of the act which authorizes the defendant or his grantees-

to redeem; and the mortgagee is said tó be a grantee, within the meaning of the statute. Grantee is a word of well known signification : it means here, the purchaser of the es-late. The mortgagee is not the owner. The mortgage is a mere security for his debt. It is not such an interest as can be' sold on execution against him : nor does he come within the technical meaning of the word grantee. At the -session of 1822, the legislature thought it necessary to pass an act,

Footnotes

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(h) enabling the people of the state, when mortgagees, to exercise this right of redemption as mortgage creditors. This is a legislative construction, and accords, in our view, with the plain interpretation of the statute under consideration. We are clear, that mortgagees are neither within its letter or spirit; and, consequently, the rule must be made absolute.

Sutherland, J. concurred.

Savage, Ch. J. (after adverting to the facts which appeared upon the motion for a rule to shew cause.)

It now farther appears, that the judgment of Sanders Van Rensselaer was by confession for a debt already secured by bond and mortgage, on lands, the sale of which was the consideration for the debt; and that he gave the defendant a stipulation, exempting his person and personal property from execution.

Under these circumstances, the Sheriff asks the advice of the Court, as to whom he shall convey ; and Sanders Van Rensselaer applies for a mandamus, commanding the Sheriff to convey to him.

This draws in question the construction of the “ act in addition to the act concerning judgments and executions f passed April 12, 1820. The 1st section of this statute provides, that all Sheriffs, after the 1st day of May then next, upon a sale of real estate by execution, instead of conveying absolutely, as heretofore, shall give a certificate of the sale, setting forth certain particulars ; and that if the property shall not be redeemed according to the act, the purchaser shall be entitled to a deed. A duplicate of the certificate is to be filed. This part of the .act has been complied with. The 2d section authorizes the defendant, his heii'S, executors, administrators or grantees, within one yéáí’ afte¡. ^he sale, to redeem, on paying the purchaser or the Sheriff^ the purchase money, with 10 per cent, interest.On making this payment, the sale and certificate are declared void. The 3d section authorizes any creditor, having a decree in Chancery or judgment at law, which is a lien on any real estate so sold, within 15 months after sale, in default of the defendant, to redeem the lands in the manner prescribed in the 2d section ; the defendant in all cases having preference of any creditor. The creditor redeeming acquires all the rights of the purchaser. Creditors may redeem from each other, on paying the redemption money before paid, with 7 per cent, thereon, and the amount of the liens, by judgment or decree, of the creditor from whom the land is redeemed. The 4th section directs the Sheriff, at the-expiration of the 15 months, to give a deed áccordingly, to’ the purchaser or creditor, if the property has not been-re-- • deemed by the defendant.

Upon this statute several questions have been ráisecF, some of which it is necessary to consider.

The object of the legislature undoubtedly wás, 1. To relieve the debtor, by preventing a sacrifice of his real estate, at Sheriff’s sale ; and 2. To enable creditors, other than the plaintiff, after a sale on execution, to satisfy their debts, by redeeming, where the property has been sold be-1 lów its value. This statute is evidently remedial; and in its exposition, it is otir 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 and advance the remedy.-1* It has been argued, and no doubt correctly, that the legislature did not mean to invert the order of liens upon real estate; and if the act has that effect, it must be owing to the negligence of creditors. 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. Before the passing of the act, a sale, under an older judgment, destroyed all junior liens. The purchaser might thus make a speculation at the expense both of the debtor and junior judgment creditors. Now, these creditors may redeem; and the act thus operates beneficially both £>r them and the debtor, as the property is made to pay mere debts, and it probably goes at its value, if encumbered to that amount. The statute, then, has no injurious effect upon liens. A mortgagee is placed in no worse situation than he was in before the act, even allowing that he has not the privilege of redeeming like a judgment creditor, in this, the statute violates no right. It merely withholds from him a remedy extended to judgment creditors. It is, to be sure, somewhat remarkable, that the statute has not given him the same remedy. I can see no good reason for a discrimination between mortgagees and judgment creditors, as both have a lien on the estate. This must, however, be a casus omissus, unless mortgagees were intended to be embraced by the word grantee.

2. It was contended that mortgagees are to be considered grantees within the meaning of the act. But it has been repeatedly decided in this Court,(i) that a mortgagee, out of possession, has only a chattel; that the mortgagor has the fee, and may maintain trespass against the mortgagee. (j)

3. Another point raised is, that the judgment creditor, to be entitled to redeem, must have a subsisting lien at the time of the Sheriff’s sale. The statute expresses no such limitation : its terms are general. The only qualification necessary to entitle a creditor to redeem is, that his judgment or decree shall he a lien. In my opinion, it comports best with the spirit and letter of the act, to admit any creditor to redeem, whose judgment or decree is a lien at the time of redemption. The estate of the debtor is not changed by the sale and certificate. The purchaser acquires no title till he receives a deed.(k) A creditor who obtains judgment subsequent to the sale, has a lien upon the estate ef the debtor, and may accordingly redeem.

In my opinion, therefore, Sanders Fan Rensselaer is entitled to a Sheriff’s deed, provided his judgment has been fairly obtained. It appears that he sold the debtor a farm, to secure the value of which, he took a mortgage on the same land, and 40 acres more, the latter being subject to a prior mortgage He persuaded the defendant to confess a judgment on the bond accompanying the mortgage, and as an inducement, deluded 200 dollars, and gave a discharge of the defendant’s uerson and personal property. In equity, he would not be permitted to enforce this judgment, to the exclusion of other creditors, having other security, which "we are to presume is sufficient. The transaction operates as a fraud upon the other creditors of the defendant, and particularly so apon the purchaser in this case, who must sustain a -heavy loss, .and is remediless at law, unless the purchase be retained. The facts would justify the presumption of connivancy with the debtor; and, in my opinion, if not enough to retder the judgment void as to other bona fide creditors, are sufficient to send the parties; into a Court of Equity, where justice may be done.

This Court may exercise a discretionary power, as. well in granting as in refusing a mandamus ; as where the end of it • is merely a private right, and where the granting it would be attended with manifest hardships and difficulties, &c..(l)

In this view of the case, we should, perhaps, be justifiable in denying the motion ; but as our decision is not res judicata,i I assent to the issuing the mandamus, believing that the proper remedy for the representatives of Lansing is to be found in the Court of Chancery.

This being the opinion of the Court, Hopkins proposed that the rule be entered, with a clause expressly saving the rights of his clients in any future litigation.

Curia. Take your rule in that form.

Rule :

In 'the matter of the application of Sanders Van Rensselaer, for a mandamus to' the Sheriff of the county of Albany.

On motion of Mr. Attorney General, on behalf of Sanders Van Rensselaer, ■ for a mandamus to issue to Cornelius Van Antwerp, Sheriff qf Albany, commanding him to execute a deed of conveyance of the premises mentioned in his application, to the said Sanders ; and on reading affidavits, stating the facts on which the same is grounded; and on hearing Mr. Hopkins on behalf of the representatives and assignees of Abraham A. Lansing, deceased, opposing the said motion ; and on reading affidavits shewing the facts on which that opposition is founded—It is ordered, that a writ of mandamus issue to the said Cornelius Van Antwerp, Sheriff, &c. according to the said motion, without prejudice to the representatives and assignees of the said Abraham A. Lansing, in any future litigation..

Sess. 45, ch. 127, s. 2.

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Jackson v. Willard, 4 John. Rep. 41. Coles v. Coles, 15 id. 319.

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Runyan v. Mersereau, 11 id. 534.

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Bissell v. Payn, 20 id. 3.

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Bac. Ab. Mandamus, (E.)