5 Minn. 409 | Minn. | 1861
By the Court
In the trial of an issue of law raised upon demurrer to an answer, it is unnecessary for tbe Court to find in its decision- the facts that are admitted in the pleading because such finding cannot influence the case one way or the other. What facts stand admitted must be governed by the pleading itself, and' cannot be added to or taken from by any finding the Court may make.
On the 21th day of February, 1858, Levi Nutting recovered a judgment, in the District Court of Rice County, against Leonard K. Flanders and William Peacock, and docketed it in Rice county, on the same day. On the 4th day of May, 1858, he caused an execution to be issued on his judgment, and sold thereon the land in controversy, which belonged to Peacock, one of the Defendants in the execution. At the sale which took place on the 26th day of June, 1858, Nutting became the purchaser, and received from the Sheriff the proper certificate of sale. Afterwards, and on the 20th day of August, 1858, Nutting conveyed by deed of quit claim to' Seth H. Kinney, the Plaintiff below, all the right and interest in the premises that he had acquired by the purchase at the Sheriff’s sale.
On the 19th day of May, 1859, the Defendant below, William Dickerson recovered a judgment against Nutting and one Whedden, and docketed it in the county of Rice. After the expiration of the time for redemption had expired, no one having redeemed the land, the Sheriff executed the proper deed to Nutting of the land.
Dickerson conceiving that his judgment was a lien on the
The question presented by these facts is, did the legal estate of Peacock in the land pass to Nutting at the sale on Nutting’s execution, or did he only acquire a lien upon the land, not to be perfected into a title until the delivery of the deed by the Sheriff? The Defendant insists that the title of land sold under an execution remains in the judgment debtor, and is not divested until after the expiration of the time to redeem, and cites quite a number of authorities to sustain his position, which are decisions from New York and Tennessee. The New York cases were decided upon a statute in these words, “ The right and title of the person against whom the execution was issued to any real estate which shall be sold thereby shall not be divested by such sale, until the expiration of fifteen months from the time of such sale; but if such real estate shall not have been redeemed as herein provided, and a deed shall be executed in pursuance of a sale, the grantee in such deed shall be deemed vested with the legal estate from the time of the sale on such execution for the purpose of maintaining an action for any injury to such real estate.” R. S. N. Y., 2d Ed., vol. 2, p. 296, sec. 61. There is no room for doubt under this statute, that the legal estate remains in the judgment debtor, until divested by the Sheriff’s deed, except for the sole purpose of allowing the purchaser to maintain an action for injuries to the estate. The statute of Tennessee probably contains some similar provision, as the cases cited by the Defendant from that State are to the same purport.
But our Statute is essentially different in this particular. The provisions which authorize and regulate sales on execution and the redemption of land, are on pages 5'72-5'74 of the Compiled Statutes, from sections 109 to section 121 both inclusive. Sales of real and personal property are treated of together, and the mode of selling each species is provided for. There is no difference made in the Statute between the sale of real and personal property, except that real property is sold subject to redemption, where the estate of the debtor is that
We are quite clear that a Statute which"authorizes the sale of a debtor’s property, real or personal, to satisfy his debts, must be understood to pass the whole interest of the debtor when sale is made, unless some limitations are made by the Statute in terms, and that the redemption privilege in our law does not change the character of the estate sold, but simply creates a defeasance by which others interested in the land may become subrogated to the rights of the purchaser, and the debtor finally defeat them all and be restored to his estate. The whole operation of the Statute is contingent upon the interference of a redemptioner which may never take place, in which case the estate that the purchaser takes by his deed is the same that he purchased at the sale, relieved of a right in others to purchase it from him.
Under the view that we feel compelled to take of our Statute, Nutting by his purchase took all the estate that Peacock had in the land subject only to the right of redemptioners to repurchase it from him. This estate was of course assignable, and passed to Kinney by the deed of quitclaim; Kinney being the owner of the estate at the expiration of the time for redemption was entitled to the Sheriff’s deed. The Sheriff executed the deed to Nutting, and he was justified in so doing
We think the Judge below took the right view of the Statute, and his judgment should be affirmed.