3 Denio 79 | N.Y. Sup. Ct. | 1846
On judgment sales of real estate prior to the redemption law of 1820, the sheriff’s deed, though given long afterwards, related back to the time of the sale. (Jackson v. Ramsey, 3 Cowen, 75.) But after the law gave the debtor and his creditors fifteen months to redeem, it was held that the deed did not retrospect to the time of the sale, so as to give the purchaser a right to the rents and profits during the fifteen months. (Bissell v. Payn, 20 John. 3.) For most purposes, it only relates back to the expiration of the time for redemption. (Klock v. Cronkhite, 1 Hill, 107.) The present statute expressly provides that the debtor may have the use and enjoyment of the property during the fifteen months ;
It is true that trespass lies against a tenant at will for voluntary waste; but that is because the wrong determines the tenancy, and the occupant no longer has the rightful possession. But in this case, notwithstanding the wrong done by the defendant, he was still rightfully entitled to the possession until the termination of the fifteen months; and in the mean time, the plaintiff could have no action for the injury. When he got the title it related back to the sale, for the purpose of enabling him to sue; (§ 61;) but a good title does not authorize him to bring trespass against the rightful occupant. The action is misconceived. It should have been waste, trover, or a special action on the case.
New trial denied.
But the rents and profits for the fifteen months may be reached by judgment creditor’s bill. (Farnham v. Campbell, 10 Paige, 598.)