1 Day 93 | Conn. | 1803
The facts respecting the taxes, and the nine acres incumbered thereby, may be laid out of the case ; because, first, it does not appear by thp'deeree, that the appraisers knew of this incumbrhnce, hnd if they did not, the petitioner has sustainedho injury ; but, see-
The only question, then, is, whether, under the circumstances of this case, there was any right in the pe-tiiionerlo redeem, the equity of redemption having been taken by Punderson’s execution, and transferred to him ?
It was argued by the counsel for the defendant in error, that an equity of redemption cannot be taken on an execution, for that the statute
The principle, therefore, adopted by the Superior
In examining this principle, the statute must govern; since the right to take lands by execution is given by the statute. After describing the proceedings to be had under an execution levied on land, the legislature declare, “ and all executions, levied upon such houses and “ lands, being, with the return of the officer thereon, re- “ corded in the records of lands, ⅛ the town wherein “ such houses or lands are situate, and also returned into “ the clerk’s office of the court, out of which the same is- “ sued, and there recorded, shall make a good title “ to the party, for whom they shall be taken, his heirs “ and assigns, forever.” It is undoubtedly a fair construction of this act, that whatever interest the debtor had, should, by the levy, become vested in the creditor. But the principle adopted by the Court, in this case, transfers to Punderson a mere redeemable interest, or a mortgage, which is personal estate. The equity of redemption, however, in Brown, the petitioner, was a thing totally different, to wit, real estate. Their principle leaves Punderson still a creditor, and Brozan a debtor, to the amount of the 42/. 10,s. and the execution entirely unsatisfied. Indeed, the creditor has obtained only a lien on the property, which maybe removed, by the payment of the debt. The appraisal is, tliereiore, idle. But such ideas are not suggested by the statute, and, therefore-» cannot be supported. To the argument of the counsel for the defendant in error, that if the levy of an execution be not treated merely as a second mortgage, it will follow, that the appraisers may be obliged to decide many very
Suppose A. mortgages to B. land worth g 1000 to secure the payment of $ 500. 0. has an execution against A. for g 500, and levies it on his equity of redemption, and procures it all set off to him. In this case, B. can foreclose A. and C. C. can pay B, $ 500, and become vested with the whole. In the cases put, suppose C.’s execution is g 250, and it is levied on an undivided interest in the equity of redemption, in the proportion that 250 bears to 500. If C. should purchase B.’s mortgage, can A. redeem from C. paying g 750 ? He cannot ; for the property levied upon is irredeemable, and C. has a right to an undivided fourth part of the whole property, subject only to be foreclosed by the mortgagee, or his assigns.
For these reasons, it appears to this Court, that Brown, in this case, had no interest in the mortgaged premises, after the levy of Pundersoii's execution ; and, therefore, that the judgment of the Court below, permitting him to redeem, is erroneous.
p. 174.