34 Minn. 458 | Minn. | 1886
The lands from which the timber involved ini this action was taken were subject to the lien of a judgment which had been
Gen. St. 1878, c. 66, § 277, provides that a “judgment, from the time of docketing the same, becomes a lien on all the real property of the debtor in the county, owned by him at the time of the docketing of the judgment, or afterwards acquired.” Sections 321 and 322 of the same chapter provide that, upon an execution sale of real property, the officer shall give the purchaser a certificate containing “a description of the real property sold;” and that, “upon the expiration of the time for redemption,” the “certificate * '* * shall operate as a conveyance to the purchaser * * * of all the right, title, and interest of the person whose property is sold, in and to the same at the date of the lien upon which the same is sold, without any other conveyance whatever.”
A purchaser of real property at execution sale makes the bid upon which the property is struck off to him for such interest as the judgment debtor had therein at the date of the docketing of the judgment, or as he has subsequently acquired; and he must, at least, be taken to make it with reference to the state and condition of the property as it is when struck off to him. He must, at least, be taken to make his bid upon the basis and contract, or quasi contract, that if, at the expiry of the period of redemption, it remain unredeemed, he shall have it as it was at the time when it was struck off to him; or, in
Waste is defined to be any unlawful act or omission of duty on the part of the tenant which results in permanent injury to the inheritance. Title, “Waste,” Whart. Law Dict.; Abb. Law Dict.; Bouv. Law Diet. The statute cited expressly recognizes waste, and, presumably, in this its usual signification, as something which may take place as between the purchaser at an execution sale and other parties, (in possession,) even during the time of redemption, before the purchaser’s title has become absolute, and affords him a remedy to restrain its commission. If it is waste at that time, it is certainly waste when the purchaser’s title becomes absolute, (see Jones v. Costigan, 12 Wis. 677;) and whatever difficulties there may be in the way of affording the purchaser, before his title becomes absolute, any other than the statutory remedy where the waste is committed before the redemption right expires, there can be none in the way of affording him, after his title becomes absolute, all the remedies for such waste which are afforded in other more or less analogous cases. Sands v. Pfeiffer, 10 Cal. 269. As, for instance, in the case of a reversioner in fee, who, for. timber unlawfully cut from his premises, may maintain any of the personal actions of ¿rover, re-plevin, or — what might be technically objectionable in a case like this at bar — trespass debonis; (Tiedeman on Real Prop. § 82;) or in the case of a land-grant railway company, which, having earned, though not having received any formal transfer of, title to lands, may,
The statutes and authorities which we have thus cited relate more particularly to waste; that is to say, to the unlawful act or omission of a tenant {i. e., holder) of the land upon which the waste is committed. In the case before us it does not appear whether the alleged cutting and removal of timber was done or authorized by any person entitled to be called a tenant of the land, or whether it was done by a mere trespasser, and not a tenant either in possession or entitled to possession. But we can conceive of no reason why what we have said and cited as to the rights and remedies of the purchaser at execution sale is not equally, if not a fortiori, applicable to the case of a mere trespasser as to one occupying the position of a tenant. Upon the reasons above adduced, and upon the authorities cited, we are of opinion that, upon the facts before stated in this case, the plaintiff is entitled to maintain this action for conversion. The pre
We have not referred to the doctrine of relation, although we are by no means certain that it might not be applied to this case with the same result to which we have already arrived as to the plaintiff’s-right of action. See Stout v. Keyes, supra; Morgan v. Varick, supra; Johnson v. Ballou, supra.
We have not found it necessary to designate the right of a purchaser of real property at execution sale, before he has acquired an absolute title by the expiration of the redemption, by any particular name. It has no common-law name, for it was unknown to the common law, and the statute has given it none. In Lichfield v. Ready, 20 Law J. Exch. (N. S.) 51, it was said by Baron Parke that a “mortgagor is not, in all respects, a mere bailiff; he is much like a bailiff; he is not a mere tenant at will. In fact, he can be described merely by saying he is a mortgagor.” And see, also, Johnson v. Ballou, 28 Mich. 380. Following this authoritative example, we may content ourselves with designating the right spoken of as that of a purchaser of real property at execution sale, before the expiration of the period of redemption. It has, however, been called “a species of conditional equitable estate,” (Page v. Rogers, 31 Cal. 293;) but we are unable to see how this designation, if it may be called such, possesses any descriptive value, or aids in arriving at a conception of the thing itself, or of its nature or attributes.
Judgment reversed, and case remanded for trial.