Citation Numbers: 44 Barb. 251
Judges: Johnson
Filed Date: 9/5/1865
Status: Precedential
Modified Date: 1/12/2023
The action is brought for the purpose of setting aside and cancelling of record certain deeds of conveyance under which the defendants, Fitch, Moseley and others who derive title from them, claim the lands in question, as a cloud upon the plaintiff’s title. The complaint also prays that the plaintiff may be let into possession. The plaintiff assumes that these conveyances are entirely void, and that none of the denfendants ever acquired any title whatever to the premises, at least as against the creditors of Peter Arndt. The referee finds, as matter of fact, that the defendants, Fitch and Moseley, are bona fide purchasers, without notice of any fraud or defect in the title, after searching the records which showed a complete and perfect title in their grantors. That they paid a valuable consideration is not disputed. It is clear enough, that at the time the defendants, Fitch and Moseley, purchased and took their convej'ance the title was apparently in their grantor, Emily F. Dexter. The records of the county
It is conceded that the judgment was a lien on the premises, and that the sale by the sheriff upon the execution was regular; and that his certificate of the sale in the hands of the plaintiff in that judgment, who was the purchaser, was a regular and valid instrument. This entitled the purchaser, or his assignee of the certificate, to a conveyance from the sheriff in case the amount of the bid was not paid by the judgment debtor within one year, with the prescribed interest, and ho creditor of his redeemed within three months thereafter. If a sheriff refuses under such circumstances to convey, the court will compel him .to do so. But a payment of the amount of the bid with the prescribed interest, within the year by the judgment debtor, puts an end to the sale, and extinguishes entirely the power of the sheriff to convey. If he executes and delivers a deed after such payment, it conveys no title, but the title remains in the debtor as it was before the sale. (Stafford v. Williams, 12 Barb. 240, and cases there cited.) By such payment the certificate becomes “null and void.” (2 R. S. 371.) It is quite manifest, however, that it is optional with the judgment debtor, whether he will redeem or allow the sale to stand, and the certificate thereof to remain in force. He is under no legal obligation to any one to redeem. Hor can he be compelled to do so for the benefit of a subsequent creditor or third person. If, instead of paying, and thus rendering the certificate of sale null and void, and extinguishing the power of the sheriff to convey, the judgment debtor having still the title, chooses to advance the money to a third person to enable the latter to purchase the certificate and thus keep it in force, I do not perceive any legal objection to the transaction. If no fraud is practiced I do not see how it can be regarded as hostile to the rights of subsequent creditors. Their rights certainly
The conveyance may perhaps, in such a case, be voidable by the subsequent creditors of the judgment debtor, but it is not absolutely void and of no effect, even as against them. It is perfectly good, and the title under it remains vested in the grantee until it is set aside, or the grantee is compelled to convey by the judgment of some competent court. If voidable at all in a case like this, it must be upon the ground that it is, in substance and effect, a mere voluntary conveyance, which an existing creditor may avoid to the extent of his own claim. It is unnecessary in this case to decide whether a creditor, having a lien upon premises thus sold, who has slept upon his right to redeem, and suffered the time to pass by,
The defendants, Fitch and Moseley, purchased and took a conveyance of the entire premises, paying a valuable consideration therefor, and the fact is distinctly found by the referee that they had no notice of any defect in the title, having made due search. The referee, therefore, very properly held and decided that the lien of the mortgage, under which the plaintiff purchased, was cut off by the sheriff’s deed, and that the action could not be maintained against the defendants, Fitch and Moseley, and the other defendants who claimed portions of the premises under them. The testimony before the referee upon the main question was quite conflicting, and we can not disturb his finding. In other respects the findings of fact by the referee appear to be fully warranted by the evidence. There was no dispute in relation to the possession of the premises having been held under the sheriff’s deed at all times after it was given.
The judgment must therefore be affirmed.
Johnson, Darwin Smith and James C. Smith, Justices.]