Bissell v. Payn — 20 Johns. 3

Majority

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Bissell against Payn.

Headnote

Where land of a debtor is sold under an execution, pending a lease by the debtor, and before the rent has accrued, and a certificate is given to the purchaser, pursuant to the statute passed April 12,1820, (sess. 43, ch. 184.) the debtor, notwithstanding the sale and certificate, is entitled, until the time for redemption allowed him by the statute has expired and the sheriff’s deed is executed, to receive and sue for the rents which have in the mean time accrued ; for the possession and enjoyment of the land remains in the same state, after the sale and until the time for redemption has expired, as before the sale: And the sheriff’s deed does not retrospect, but must be dated after the time for redemption has Expired. Such a sale, is conditional merely, and the purchaser, until the sheriff’s deed is executed, has a lien only on the land.

IN ERROR, on certiorari to a Justice’s Court. Payn sued ^ it. • • /* i — — Sissell, before the Justice, m an action oí debt tor rent re

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served on a written lease. It appeared, that during the term, anq before the rent had accrued, all the title and estate of J°., the lessor in the demised premises, were sold by the sheriff, on a judgment and execution, in favour of a stranger, against P. The sheriff, on such sale, had given to the purchaser a regular certificate, and filed a duplicate thereof, pursuant'to the act, entitled, “ An act in addition to the act concerning judgments and executions,” passed April 12, 1820. (sess. 43, ch. 184.) But the time allowed to the debtor, (P.) by the statute, for the redemption of the premises, had not expired; and, of course, no deed had been executed by the sheriff to the purchaser. The defendant set up the sale and certificate as a defence against the plaintiff’s right of action. The Justice overruled the evidence as irrelevant, and gave judgment for the plaintiff below, for the amount of the rent due.

Upon examining the provisions of the Statute, (sess. 43, ch. 184.) we are of opinion that the Justice decided correctly. The statute intended to leave the possession and enjoyment of the land, after the sale and certificate, and until the time allowed for its redemption had expired, in the same state it was in before the sale. The sale of the land is provisional only; and operates like a decree of foreclosure on a mortgage. If the debtor does not redeem his land within a year, the sheriff is then directed to execute a deed, &c. According to the correct practice under this statute, the sheriff’s deed ought to bear date after the time for redemption has expired. The certificate, of itself, transfers no title. It is evidence merely of an inchoate and conditional sale ; and until the deed of the sheriff is executed, the purchaser has a lien only on the land : he has no title to the rent which has accrued prior to the time when the right of redemption expired. The terms of the statute do not require the construction, that the deed, in its operation and effect, shall retrospect to the day of sale, which must always be fifteen months before the execution of the deed by the sheriff: and it would be very inconvenient and unjust to deprive the judgment debtor of the rents accruing during that interval of time. If he cannot receive

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and sue for such rents, it follows that no person has a right to collect them; and the tenant, during that time, cannot safely pay his rent; for it is utterly uncertain whether a deed will be given at all; or, if given, whether it will be to the purchaser at the sale, or to a subsequent judgment creditor. The judgment must, therefore, he affirmed.

Judgment affirmed.