Stoddard v. Stoddard ( 1941 )

Crapser, J.

(dissenting). I am unable to agree with Presiding Justice Hill’s recommendation and opinion for reversal.

He says: “ Service of the summons and complaint upon LeBoy was made three days before his title was divested by the giving of the sheriff’s deed.”

The proceeding which led to the giving of the sheriff’s deed was the issuing of the execution on September 28, 1934. All his right, title and interest in the lands now occupied by the defendant Nielsen was sold by the sheriff of Warren county under said execution on November 21, 1934, and the same was conveyed by said sheriff to Ella Aldridge Stoddard by sheriff’s certificate of sale dated November 21, 1934. The certificate was subsequently recorded in the Warren county clerk’s office on December 21, 1934. His time for redemption of said property of said sale expired on December 21, 1935. (Civ. Prac. Act, §§ 724, 725.)

He was not served until June 16, 1936. The sheriff’s deed was dated June 19, 1936, and recorded May 17, 1937; therefore, he was served three days before the sheriff’s deed was dated; however, his time to redeem had expired on December 21, 1935.

Section 718 of the Civil Practice Act reads as follows:

“ Vesting of title to real property sold. The right and title of the judgment debtor, or of a person holding under him, or deriving title through him, to real property sold by virtue of an execution is not divested by the sale, until the expiration of the period within which it can be redeemed, as prescribed in this article, and the execution of the sheriff’s deed. But if the property is not redeemed, and a deed is executed in pursuance of the sale, the grantee in the deed is deemed to have been vested with the legal estate from the time of the sale.”

The title of a judgment debtor to lands sold on execution is not divested until the sheriff’s deed is executed but after the expiration of the time for redemption the purchaser acquires an equitable title subject only to the rights of possession of the judgment debtor. This inchoate title of the purchaser of lands on execution after the expiration of the time for redemption by the judgment debtor is such an interest and title as entitles the purchaser to maintain an action for the cancellation of instruments or incumbrances, which within the doctrine of courts of equity are clouds upon the title. (Remington Paper Co. v. O’Dougherty, 81 N. Y. 474; Chadeayne v. Gwyer, 83 App. Div. 403.)

I, therefore, dissent from the opinion of Presiding Justice Hill for reversal and vote to affirm the judgment appealed from.

Judgment reversed on the law and facts, with costs to the appellant to abide the event, and a new trial granted.

| ■ The findings contained in the decision-opinion at variance with the prevailing opinion are reversed, and this court finds that the action was brought within the time prescribed by the Civil Practice Act.