Ex parte Stevens , 4 Cow. 133 ( 1825 )

Woodworth J.

who delivered the opinion of the Cour^ spoke to this effect:

• The two judgments which belong to Munro, were docketed in 1817; another, belonging to Cumpston, was docketed in 1819, and another, belonging to Stevens, in 1820; all being against Field, who owned the premises in question at the time of docketing. On Cumpston’s judgment, the Sheriff sold these premises to Gorham the 23d of March, 1822; and after the expiration of the 15 months, executed a conveyance (September 6th, 1823.) The bid of Gorham not amounting to the sum due on Cumpston’s judgment, he still remained a judgment creditor of Field. July 23d, 1823, before the deed of conveyance was due to Gorham, Munro purchased the premises, upon his judgments, and took a certificate of sale. On the 24th of July, 1824, Cumpston claimed, as judgment creditor for his balance, to redeem of Munro, and paid to him the requisite sum ; and on the 2d of October, 1824, Stevens, claiming to redeem upon his judgment, paid the proper sum to the Sheriff, for Munro’s use. This offer of Stevens to redeem was after the 15 months from Gorham’s pinchase had elapsed, but within 15 months from the sale to Munro, so that Stevens came in season to redeem of Munro, provided his judgment was a lien ; and Cumpston was also clearly in time, if his balance was a lien. Their respective rights depend entirely upon this question of lien. If they show no right of lien, we have repeatedly decided that they cannot redeem, however meritorious their pretensions may be in other respects.

First, then, as to Cumpston. His lien is clearly gone. His judgment was once a lien, and continued so for 15 months after the sale to Gorham : but after the lapse of that time, it ceased to be so. A deed was executed to the purchaser, who took all the right which a sale and conveyance upon the judgment could give. This right ivas complete as to that judgment; and took from it all lien. In principle, it is the case of Hewson v. Deygert, cited by the counsel for Stevens. The Court decided, in terms, that, after a sale upon the first instalment of the judgment, the lien of the other instalments was gone. Unless this were so, the most manifest injustice to the purchaser might intervene. Both upon principle and authority, we are hound to hold that Cumpston’s balance was not a lien, when he made the effort to redeem.

Then had Stevens a right to redeem ? He comes as a junior judgment creditor; His judgment was a lion when the sale was made to Gorham ; but he neglected to redeem. The 15 months elapsed after Gorham’s purchase upon a judgment senior to Stevens’. A perfect title passed to Gorham by which all junior liens were subverted. Stevens should have redeemed of Gorham. Not having done so, he is concluded. His lien is gone, and was so when he came to redeem of Munro.

But Cumpston paid the money directly to Munro. Whether his acceptance of the amount gives Cumpston an equitable right, it is not necessary to decide. The remedy upon this ground, if any, belongs to another forum.

Neither Cumpston nor Stevens are entitled to a conveyance. We think the Sheriff should convey to Munro.

Rule accordingly.