Hardenburg v. Beecher ( 1883 )

Mr. Justice Clark

delivered the opinion of the court October 2d 1883.

A purchaser at a sheriff’s sale, before his deed has been acknowledged, has air inceptive interest in the land: Morrison v. Wurtz, 7 Watts 437; such an interest as will be bound by a judgment: Robb v. Mann, 1 Jones 300. The subsequent acknowledgment and delivery of the sheriff’s conveyance inures to the benefit of lien creditors, and, as in the case of a private individual sale, the incumbrancer by relation has the benefit of his security to the extent of the whole estate; such an estate is attended with the ordinary consequences of sale by an individual: Hawk v. Stouch, 5 S. & R. 161; Stephen’s App., 8 W. & S, 188; Slater’s App., 4 Casey 170. The title acquired under the sheriff’s deed relates back to the time of the sale, not merely to the date of the deed: Hoyt v. Koons, 7 Harris 277; but not so as to wholly divest the legal ownership of the debtor, who, until the acknowledgment of the deed, is entitled to the possession, with all its attendant advantages: Garrett v. Dewart, 7 Wr. 342. A judgment entered against the debtor after the day of sale is not a lien upon the land, although the deed to the purchaser was not acknowledged until a subsequent time: Hahn v. Rhoads, 1 P. & W. 484.

It follows as the result of all these cases, that if the deed be subsequently acknowledged, the vendee has such inceptive title by bis mere purchase as will be bound by the lien of a judgment, whilst the debtor has no such title remaining as will support a lien ; if, however, the acknowledgment be refused, the vendee’s contract is rescinded, and the debtor’s title remains as if no sale had been made.

The debtor is, however, entitled to the possession until the acknowledgment; the purchaser has by liis mere purchase acquired no title to the present enjoyment. This right to ¡possession carries with it its attendant advantages, the right to the growing crops as they may mature ; the right to an ordinary use of a mine or quarry, or to the flow from an oil well. The debtor will not be allowed to commit waste or destruction of the premises. The sheriff’s vendee is, therefore, only entitled to the growing grain, to the use of mine or quarry, and the oil upon the lands embraced within his purchase, subject to the right accruing to the debtor under his possession.

- The grain, the coal, or the oil, so far as they are of the realty, belong to the vendee; the debtor may, however, pending the sale, and until the acknowledgment of the deed, cut the ripened grain, mine the coal, or receive the flow of oil, and apply the product to his own use. Whilst these products are attached to tlie realty they belong to the vendee, and it is by ordinary severance only that they become the property of the debtor.

The grain as a growing crop, the coal in the mine, or the oil in the well, could not, after the sale of the land, be seized and sold upon execution as the property of the debtor, nor would the debtor be allowed to sell or waste them. But if, before the acknowledgment, the grain ripen and the debtor sever it from the land, if he continue the ordinary work of the mine, or operate the oil well, the grain, the coal, and the oil, the ordinary products of the land, during the lawful possession of the debtor, are his ; these are some of the attendant advantages of his possession. After severance and possession taken by the debtor, these products are of course liable to execution for his debts.

But if he voluntarily abandon the possession of the land, and surrender to the sheriff’s vendee, he loses all these attendant advantages.

If the vendee enter under these circumstances, he is lawfully in possession; the subsequent acknowledgment of the deed gives him title by relation from the date of the sale. The debtor’s right to remain until the sale is fully completed, and to enjoy its incidental advantages as such, are not the subject of execution, nor is he obliged to remain for the benefit of liis creditors ; the privilege is a personal one, and he may exercise it or not, as he chooses.

Hardenburg and McClure bought the lands and the oil, and if Merrill and Markert, the debtors, without any fraud, abandoned their possession and suffered the vendees to enter, if they d id not stand upon their rights or claim the advantages incident to possession, but voluntarily relinquished all, we think the vendees were justified in making an entry for the purpose of securing the oil which flowed from the lands they had already purchased, and which were subsequently convejmd to them. If, whilst lawfully in possession, they er'octed tanks and received the flow of oil from the well, which otherwise would have gone to waste, the subsequent acknowledgment of the deed would as certainly have confirmed their title to the oil, part and parcel of the land when they bought, as to the land itself. Merrill and Markert might have remained pending the acknowledgment of the sheriff’s deed and received and claimed this oil as their own, but they were not obliged to do so. They cannot complain, therefore, and we cannot see how their creditors can complain, as the claim of these creditors to the oil can occupy no higher place than that of Merrill and Markert.

The judgment is therefore reversed.