Titus v. Lewis

3 Barb. 70 | N.Y. Sup. Ct. | 1848

By the Court,

Gp„idley, J.

It is contended by the defendant’s counsel that the first sale of the premises exhausted the lien of the judgment under which it was made; and that, as a necessary consequence, the second sale for the unsatisfied balance, and the title of the plaintiff derived under it, are void. The general proposition that a sale of lands under a judgment destroys the lien of the judgment on those lands, is not to be disputed. (Hewson v. Deygert, 8 John. Rep. 333. Ex parte Stevens, 4 Cowen, 133.) It was however competent for the legislature to alter this rule; and they have done so in relation to a certain class of cases, to which the one now under consideration belongs. The 45th section of title 5th, chapter 6, part 3 of the revised statutes, (2 R. S. 370,) gives a right of redemption of lands sold on execution, within one year from the sale, on the payment of the amount bid, with ten per cent interest thereon. The 46th section declares that such redemption may be made, (1.) by the judgment debtor whose lands were sold; (2.) in case of his death, by his devisee or heir; (3.) by his grantee who shall have acquired an absolute title to the lands by deed. Then comes the 49th section, which provides as follows : “ Upon such payment being made, by any person so entitled to redeem any real estate so sold, the sale of the premises so redeemed, and the certificates of such sale, shall be null and void.”

In this case, therefore, by the very terms of this enactment, the redemption under the first sale rendered that sale null and void, and, by necessary consequence, there having been no sale in law there was no extinguishment of the judgment lien upon the premises. The judgment was merely paid and satisfied pro tanto ; but remained a valid lien for the unpaid balance. Such was the construction given to the act, by the court, in Wood v. Colvin, (5 Hill, 228,) which we regard as a direct authority for the plaintiff in this case. It is true, the lands were redeemed in that case by the judgment debtor ; and in this, by his grantee. That circumstance, however, makes no difference; for the statute makes the sale void, as to the grantee, precisely as it does against the debtor himself. The decision in the case of Wood v. Colvin was not put upon the ground that the lien of the judgment attached to the premises, which had been once sold, when redeemed by the judgment debtor, as upon lands newly acquired by him; but distinctly upon the ground that the first sale had been nullified by the act of redemption, and that the case was to be regarded as though no sale had been made. That case is also a conclusive authority upon the point of the alleged irregularity of the sheriff in making the second sale, after the expiration of his term of office. The motion for a new trial must, therefore, be denied.