Erwin v. Schriver — 19 Johns. 379

Majority

p. 379

In the matter of S. Erwin against Schriver, Sheriff, &c. In the matter of T. M'Burney against The Same.

Headnote

, A sheriff; unsued onajudgth Theírsora* hmd^whfch wasr seise™,s‘at detih™1 alien! tl¡l®sua¿1l®’to ®hc- “ act in addiconcerning íxt rations, pa?, jpr^ x¡|o.of ch*

ju§ment irfhil f^our against heirs of 5f.,ten-toütesherifFü'e whfchthe land ¡he* purchfserl ‘Interes™ ¡¡’□nof thelTnd so soja,and defordth®hwd°1®j section of the act: Held, that js., as judgment creditor, could not be entitled of the^andsoid tent of hisUim. his^ebtor6»"^ it seems, that the act has not provided for a redemption of part oí the premises sold under an execution, and, therefore, he had no legal right of redemption whatever.

THESE were cross motions for writs of mandamus to the defendant, as sheriff of the county of Steuben. There was a judgment in the Court of C. P. of Steuben county, in favour of Thomas McKean, against the heirs of John Mulhollen deceased, on a scire facias to revive a judgment, docketted in February, 1807. Af.fa.w as issued on the judgment rendered on scire facias, by which the defendant, on the "23d of September, 1820, sold, as an entirety, 254 acres of land, of which J. M. was seised at the time of his death, the whole of which was purchased by T. MlBurney, who paid his bid; and a certificate of the sale was filed, according to the act of the 12th of April, 1820. (Sess. 43. ch. 184.) S. Erwin and F. Erwin had a judgment in the Court of C. P., of S., against William S. Mulhollen, one of the right heirs of John Mulhollen, for 700 dollars, debt, on a bond conditioned to pay 350 dollars, docketted the 12th of March, 1819, and F. E. assigned to S. E., all his interest in the judgment. Afterwards, on the 25th of November last, S. E. paid to the sheriff 300 dollars, being more than the amount bid by Burney, with ten per cent, interest, and the sheriff gave him a receipt. S. E. demanded a deed for all the lands so purchased by MiBurney ; and the defendant refused to execute a deed to him for more than William S. Mulhollen’s share, as a tenant in common with the other heirs.

Lynch, in behalf of S. Erwin,

moved for a mandamus directed to the defendant, commanding him to execute a deed tp S. E. for the whole; of the land sold by him, to MlBurney, as above stated. .

p. 380

Henry, contra.

delivered the opinion of the Court. We arg decidedly óf opinion, that Erwin has no right to a deed for all the lands thus purchased. His lien never extended to the whole, nor any further than to the individual right of the tenant in common, against whom he had a judgment. It never could have been the intention of the legislature to give to a creditor a right of redemption to any other lands, than such as were subject to the lien of the judgment creditor who offered to redeem. Beyond such lands, he has no pretence to step into the place of the purchaser. The right to redeem can be co-extensive only with the lien.

There are serious difficulties in allowing a redemption of part of the premises only. The purchaser has a right to object to receive part of the purchase money only, retaining part of the land. His interest is depreciated by making him a tenant in common; and he can urge, with great force, that he has a right to retain bis purchase, unless some creditor, having a right to redeem the whole, shall refund to him his purchase money and interest. There is, also, a difficulty, as regards the sheriff: he has sold the land as an entirety, and he would be obliged to give two deeds, as upon distinct sales, when no stich sales took place. The sheriff has not the means of ascertaining the extent of the interest of the tenant in common, whose lands have been sold a second time; nor does the Court possess the means of doing so. We think the case presented by Erwin, is one not provided for by the statute. If it is within the equity of the act, as to which we give no opinion, the Court of Chancery alone can afford redress.

Motion denied.