Farmers' Bank v. Merchant

C. L. Allen, Justice.

The defendants contend, that by the sale of the land under plaintiffs’ executions, as well as those of Sherman to Hawley, the lien of the plaintiffs under their judgment was extinguished. The cases in 4 Hill, 544, and 2 Wend. 297, decide, that when a sale of real estate has taken place under several executions, the lien is gone as to all the judgments, and that the junior judgment-creditor has no ! right to redeem, although nothing was made , to apply on his execution. And the defendants insist that the sale of the land was a sale of the lien, and that it vested in the purchaser after the time for redemption had expired. The defendants, I think, have not averred sufficient facts in their answer to avail themselves of this point, even if it were tenable as between the parties to this action. A seizure and sale of land under an execution does not divest the estate of the debtor, unless the purchase-money is paid and a deed delivered. It is true, the deed, when executed, relates back to the time of sale and purchase, and that the purchaser, after the time for redemption has expired, is entitled to his deed. But the answer does not aver the important fact that the sale to Hawley was completed by payment of the money—the amount bid. (Catline agt. Jackson, 8 J. R. 520; 2 id. 248; Shepard agt. Rowe, 14 Wend. 260; 4 Hill, 619.)

For aught that appears by the answer, the sale may never have been completed to Hawley: that is, the money may never have been paid, or any certificate of sale executed to him, and yet the whole answer be true. The property may have been struck off, but the purchase afterwards abandoned; and yet it would be true to say that the time for redemption had expired, and no redemption made. The answer is clearly insufficient for these reasons.

But independently of this, I am of opinion that the defendants cannot avail themselves of this defence in an action against them, to set aside the deed as fraudulent. They must stand or fall by the validity of the deed which has passed between them. When the plaintiffs come in contact with Hawley, or in conflict with his title, it will be a matter between them. It is enough that they have a right to ask that the cloud fraudulently interposed by the defendants be set aside. Without, however, further considering this point, it is sufficient that the present answer is defective. A judgment must be ordered for plaintiffs on the demurrer, with leave for defendants to amend on payment of $22 costs.