Van Camp v. Peerenboom

14 Wis. 65 | Wis. | 1861

By the Court,

Cole, J.

Whatever interest the appellant had in the premises mentioned in the pleadings, was undoubtedly conveyed to Anselmus Yan Camp by the deed of November 6th, 1857. At this time it appears he had a contract for the purchase of the premises of the Eox & Wisconsin Improvement Company. He had gone into possession of the land under this contract, and for aught that appears in the case, might have paid the full amount of the purchase money. Still, all of his interest in the land under this contract, whatever it was, he conveyed to Anselmus Yan Camp by the above mentioned deed, which contained a covenant that he was well seized of the premises, and also covenants of warranty of title. Under these circumstances there is no room for doubt that Anselmus had such an interest in the premises as to subject them to the lien of the judgment recovered against him by Peter Hendricks on the 9th of January, 1858, and to a sale on execution on that judgment. Eor the statute then in force made a judgment of a court of record a lien upon all lands, tenements, real estate and chattels real belonging to the judgment debtor in the county where the judgment was rendered or a transcript thereof filed, and subjected such property to sale upon execution. Section 5, chap. 102, R. S., 1849. And in the .chapter prescribing wbat rules should be observed in tbe construction of statutes, it was declared that the words “land” “lands,” and the words “real estate” and “real property,” should be construed to include lands, tenements and heredi-taments, and all rights thereto and interests therein. Section. 9, chap. 4, R. S., 1849. So that under those statutes the judgment of Hendricks bound the land, and Anselmus "Van Camp’s interest therein was sold under the execution. The purchaser at the sheriff’s sale took whatever interest Ansel-mus had in the premises. It follows from this that when the property was reconveyed to the, appellant, in August, 1858, it was thus reconveyed subject to that judgment. The appellant therefore could not give a good title to the premises which he sold to the respondent, under the contract of August 9th, 1858, without discharging the Hendricks judgment against Anselmus, or redeeming of the purchaser at. the sheriff’s sale, neither of which things has he done. As a matter of course, he ought not now to recover of the respondent the purchase money for land to which he could give no title. The respondent states in his answer that he will pay the purchase money whenever the appellant will make him a good title, and this is all he should be required to do.

It is objected by the counsel for the appellant that it does not appear that his client had any right or [interest in the land • at the time he executed the conveyance to Anselmus. But it is distinctly alleged in the answer that a long time previous to the execution of the contract set forth in the complaint, the appellant had contracted with the Eox & Wisconsin Improvement Company for the purchase of said premises, and that afterwards he conveyed them to Anselmus ; and this averment is not denied. It is but fair to assume that it was the interest which he acquired under the contract with the Eox & Wisconsin Improvement Company, which was conveyed to Anselmus. And in view of the clear and distinct provision of our statutes before cited, it seems unnecessary to elaborate upon the point as to whether the judgment against Anselmus became a lien upon the premises thus conveyed. The statute made the judgment a charge upon real belonging to Anselmus at tbe time of its rendition, and tbe words “ real estate ” are very compre-bensive, sufficiently so to include bis interest acquired by tbe conveyance from tbe appellant. In New York it bas been beld that even possession of lands is an interest wbicb may be sold on an execution against tbe possessor. Klein vs. Graham, 3 Caines’ R, 188; Malin vs. Garnsey, 16 Johns., 189; Griffin vs. Spencer, 6 Hill, 525. Also that a person in tbe possession of land under a contract for tbe purchase and sale of it, bad an interest therein wbicb might be sold on execution. Stone vs. Scott, 18 Johns., 94; Cary vs. Parker, 9 Cowen, 73; Ten Eyck vs. Walker, 4 Wend., 462. It was subsequently enacted in that state that tbe interest of a person bolding a contract for tbe purchase of lands should not be bound by a judgment or sold on an execution, but that tbe remedy against property thus situated should be in equity. 1 N. Y. Rev. Stat., 744, sec. 4; Talbot vs. Chamberlin, 3 Paige, 219; Grosvenor vs. Allen, 9 id., 75; Kellogg vs. Kellogg, 6 Barb. (S. C.), 116; Sage vs. Cartwright, 5 Seld., 49; Moyer vs. Hinman, 17 Barb. (S. C.), 137; Bigelow vs. Finch, id., 394; Mead vs. Gregg, 12 id., 653. See also Douglass vs. Huston et al., 6 Ohio, 156; Baird vs. Kirtland, 8 id., 21; Huntington vs. Rogers, 9 Ohio State, 511.

It was insisted-that tbe judgment against Anselmus Yan Camp was invalid on account of some irregularity in tbe proceedings for obtaining it. We fail however to discover any such irregularity in tbe suit of Hendricks vs. Van Camp as would in tbe least affect tbe validity or sufficiency of that judgment.

Tbe conclusion at wbicb we have arrived is, that tbe judgment of tbe circuit court must be affirmed.