By the Court,
Thе first question is, whether one who has acquired an equitable right to an absolute deed from a judgment debtor, or which, in this сase, is the same thing, from the sheriff who sold his interest, is entitled to redeem within the 2 R. S. 293, § 46, sub. 3. The words of the act are too рlain for question. They are, that “any grantee” [of the judgment debtor] “ who shall have acquired an absolute title by deed, sale under mortgage, or under an execution, or by any other means,” may redeem. The plaintiff, when he аpplied to the sheriff and offered to redeem, had not acquired title by deed. An actual deed is necessary to constitute a grantee, having a right to redeem as deriving title from the judgment debtor. The sheriff is not bound to regard an equitable title. If that may be considered any where, as equivalent to a deed, it can only be so in chancery. The defendant holds and defends under Earnhardt Nellis’ title; not his own. Nellis’ title is paramount to that of the plaintiff. The judgment under which he (Nellis) claims is older than that under which the plaintiff claims ; and his (Nellis’) deed is prior in date. It is true that, had the plaintiff succеeded in obtaining a deed, and in his effort to redeem, as the holder of the defendant’s title, he would have seсured a legal preference, and been entitled to- recover; for I do not think that his merely assigning the right which he acquired as purchaser at the second sale, would preclude him. It was a naked assignment, without covеnants assuring an ultimate title ; a mere transfer or quit-claim of his own rights. It did not prevent his afterwards acquiring a right to redeem, by obtaining the place of the defendant. But Earnhardt Nellis got the start of him ; and, for aught I see, without fraud, or any pоsitive interferencé on his part, by way of holding the sheriff back and preventing him from giving such a deed to the plaintiff on thе 4th of October, 1833, or afterwards, as would have entitled him to redeem on the 28th of June, 1834. I do not collect from thе papers before us, that the
I have thus anticipated, in a great measure, the argument against allowing the deed of February 28th, 1835, to relate bаck to, and be considered as a deed of the 4th of October, 1833. There could not be the least difficulty in giving effеct to this relation, had Earnhardt Nellis been the man who prevented the deed from then being given. But no proof to that effect was offered in any shape. A mere notice to the sheriff of the circumstance did not makе it true, nor tend to its establishment. The plaintiff did not seek to redeem as assignee of a judgment creditor, by paying up the whole incumbrance; but he came as grantee, or one having acquired the title of the judgment debtor, and therefore being entitled to redeem, on refunding the money paid by the man who stood in place of himself by virtuе of the assignments.
New trial denied.