Rich v. Baker

By the Court, Bronson, Ch. J.

On judgment sales of real estate prior to the redemption law of 1820, the sheriff’s deed, though given long afterwards, related back to the time of the sale. (Jackson v. Ramsey, 3 Cowen, 75.) But after the law gave the debtor and his creditors fifteen months to redeem, it was held that the deed did not retrospect to the time of the sale, so as to give the purchaser a right to the rents and profits during the fifteen months. (Bissell v. Payn, 20 John. 3.) For most purposes, it only relates back to the expiration of the time for redemption. (Klock v. Cronkhite, 1 Hill, 107.) The present statute expressly provides that the debtor may have the use and enjoyment of the property during the fifteen months ;(a) and that his title shall not be divested until the expiration of that time. But he is answerable to the grantee in the sheriff’s deed, for any waste he may have committed after the sale; and the grantee is deemed vested with the legal estate from the time of the sale, for the purpose of maintaining an action for any injury to the land. (2 R. S. 336, § 20 to 22; p. 373, § 61.) Although the defendant was entitled to the possession during the fifteen months, the cutting and carrying away the timber was a wrongful act, for which the plaintiff, after he got his deed, might have had an action of waste, by the express terms of the statute. (2 R. S. 336, § 20.) And under the general words of the 61st section, (p. 373,) giving the grantee in the deed the title from the time of the sale, “ for the purpose of maintaining an action for any injury to such real estate.” I think the plaintiff might have brought trover for the timber; or that he might have had an action on the case in the nature of waste to recover damages. But replevin in the cepit only lies where trespass might have been brought. And the general rule is, that trespass for an injury to real estate, can only be maintained by a party in possession, or by the owner of lands which are unoccupied. Here the premises were not vacant; and the possession was not in the plaintiff, but in the defendant.

It is true that trespass lies against a tenant at will for voluntary waste; but that is because the wrong determines the tenancy, and the occupant no longer has the rightful possession. But in this case, notwithstanding the wrong done by the defendant, he was still rightfully entitled to the possession until the termination of the fifteen months; and in the mean time, the plaintiff could have no action for the injury. When he got the title it related back to the sale, for the purpose of enabling him to sue; (§ 61;) but a good title does not authorize him to bring trespass against the rightful occupant. The action is misconceived. It should have been waste, trover, or a special action on the case.

New trial denied.

(a) But the rents and profits for the fifteen months may be reached by judgment creditor’s bill. (Farnham v. Campbell, 10 Paige, 598.)