Pease v. Bancroft , 46 Mass. 90 ( 1842 )

Shaw, C. J.

None of the cases cited, we think, are directly in point; but the case depends on a few plain principles. The plaintiff claims of the defendant $100, as the surplus of the sale by him, as a deputy sheriff, of an equity of redemption, over and above the amount of the execution upon which it was sold. As this equity was sold in June 1834, and the plaintiff took his title by a quitclaim of the estate to him by Jona. Morse 2d, in August 1835, it is very questionable whether he could maintain an action for this surplus, in his own name, even if it properly belonged to Darius Young, the original debtor, or Artemas Young, the purchaser of the equity of redemption, under the same attachment, as hereafter stated. The doubt is, whether a mere quitclaim deed of the estate would operate as an assignment of this surplus, in the hands of an officer, who had sold the equity of redemption on execution ; and if it would, then, whether it would be any thing more ;hai. an assignment of a chose in action.

But we are all of opinion, that the second attaching creditor had no right to cause the equity of redemption to be sold on his execution, whilst the prior attachment was pending ; and that the purchaser from the officer, at that sale, took nothing by that deed, as against the prior attaching creditor ; and .that when the sale was rightfully made on the execution issued in pursuance of the first attachment, the former was rendered wholly void. An equity of redemption is necessarily single and indivisible, and there can be but one rightful and valid sale, and but one party can have a right to redeem. In this respect it is entirely distinguishable from Barnard v. Fisher, 7 Mass. 71, and the other cases of levy on execution, where the property is taken at an appraisement, and where an equity of redemption is levied on, without deducting any thing for the incumbrance. A sale is made at what a purchaser will give, and this is necessarily influenced by the existence of prior attachments. This was manifest in the present case, where an equity was sold for $ 30, which afterwards sold for $ 300.

Whether this sale on the second attachment, pending the first, would have been good against the debtor, if the first attaching creditor had never obtained judgment, or never caused the equity to be sold pursuant to his attachment, we give no opinion. If it would have been good, it would seem to be injurious to the debtor, by causing his property to be sold at a reduced value. But the question does not arise here, because the plaintiff in this case represents both the original debtor and the purchaser under such second attachment.

The second attaching creditor having thus taken his judgment before the first, and attempted to sell the equity, and nominally satisfied his execution, the third attaching creditor became second, and having waited till after the valid sale, and then taken his judgment and execution, and seasonably demanded this surplus, we are of opinion that the defendant rightfully paid it over to him. The plaintiff could not demand the surplus, in virtue of his conveyance derived from Da'rius Young, the debtor, because the third attachment was made before his conveyance, and was good against the debtor; nor in virtue of the conveyance of Artemas Young, because he had no title, but as purchaser at the void sale of the equity, on the execution of the second attaching creditor.

Judgment for the defendant.