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can one who retains, and will not surrender, its benefits.1 One who seeks to set aside a sale should act promptly, lest innocent parties should acquire rights, or he should be deemed to have acquiesced therein. And notice of the motion or proceeding to vacate a sale should be given to all parties in interest.
VI. REDEMPTION—1. Generally-What Law Governs.— The right to redeem from an execution sale is purely statutory. As a general rule, the law in force at the time of the sale will govern and determine the right to redeem ;5 but in case of a sale upon foreclosure of a mortgage, it has been held that the right of redemption existing at the time of the execution of the mortgage cannot be taken away by subsequent legislation. And where the liability which results in the judgment and execution under which the sale is made, occurs in one State, and the sale is made in another, the right to redeem is controlled by the law of the forum,
, or State in which the judgment is rendered.?
Where real estate is sold separately in different parcels, it may be redeemed separately. 8 The right to redeem is, in a sense, a personal right and follows the judgment debtor even though he may have sold the land after the lien of the judgment or execution attached.9
2'. Laird, 4 Pac. L. Jour. 474; Glassell “There are two rights of redemption, 7'. Wilson, 4 Wash. (U. S.) 59.
the general equitable right and the 1. Johnson v. Caldwell, 38 Tex. 217; statutory right. The former is forever Tarleton v. Kennedy, 21 La. An. 500. barred by the decree and sale; the latter
2. Vanduyne 2. Vanduyne, 16 N. J. does not spring into existence until the Eq. 93; Daniel '. Modawell, 22 Ala. sale takes place.” Eiceman z'. Finch, 365; Cunningham v. Felker, 26 Iowa 79 Ind. 511, 512, per ELLIOTT,
C.J. 117; Lyon 7. Brunson, 48 Mich. 194; 5. Davis v. Rupe, 114 Ind. 588; EdCent. Pac. R. Co. v. Creed, 70 Cal. wards v. Johnson, 105 Ind. 594; Moor 497; Cowan v. Sapp, 81 Ala. 526, and v. Seaton, 31 Ind. 11. See also Butler Alabama cases cited: Raymond v. V. Palmer, 1 Hill (N. Y.) 324; Moore Paule, 21 Wis. 531; Jenkins v. Merri- 7. Martin, 38 Cal. 428; Tuolumne etc. weather, 109 III. 647; Ingram v. Belk, Co. v. Sedgwick, 15 Cal. 515. 2 Strobh. (S. Car.) 207; Stewart v. 6. Cargill 2. Power, i Mich. 369; Marshall, 4 G. Greene (Iowa) 75. See Howard 2). Bugbee, 24 How. (U. S.) Fletcher v. McGill, 110 Ind. 406. 461; Travellers' Ins. Co. v. Brouse, 83
3. Wright v. Leclaire, 3 Iowa 241; Ind. 62. See also Buser ?'. Shepard, Osborn v. Cloud, 21 Iowa 238; Lyster 107 Ind. 417; Bryson v. McCreary, 102 7'. Brewer, 13 Iowa 461; Stark v. Ind. 1; Coddington v. Bispham, 36 N Mitchel, 2 A. K. Marsh. (Ky.) 16; J. Eq. 574; Boice v. Boice, 27 Minn. 371; Williams v. Cummins, 4 J. J. Marsh. Hillebert z'. Porter, 28 Minn. 496; Hley(Ky.) 637; Toler v. Ayres, i Tex. 398; ward 7. Judd, 4 Minn. 483; 2 Jones McKinney v. Jones, 7 Tex. 598; s.c., 58 Mort., § 1051; CONFLICT OF LAWS, Am. Dec. 83; Sears 7. Low, 2 Gilm. vol. 3, p. 499. 111.) 281, Baker v. Hall, 29 Kan. 442; 7. Hutchins v. Barnett, 19 Ind. 15; Cline v. Greene, 1 Blackf. (Ind.) 53; Doe v. Collins, i Ind. 24; Rorer on State Bank 2. Marsh, 5 Eng. (Ark.) Judicial Sales (2nd. ed.), § 1149. 129. See also Wilkie zi. Ingham, 52 8. Robertson
Dennis, Ill. Mich. 641.
313 The officer who made the sale is not, 9. Livingston v. Arnoux, 56 N. Y. however, a necessary party in ordinary 507; s.c., 11 Alb. L. J. 111; Rorer on cases. Beach z. Dennis, 47 Ala. 262. Judicial Sales, $ 1164; Yoakum ?'.
4. Rorer on Judicial Sales (2nd ed.), Bower, 51 Cal. 539; Elsworth v. Mul
1148; Herman on Executions, 437, doon, 15 Abb. Pr. U. S. (N. Y.) 440. § 263; Freeman on Executions, 9 314.
And where land has been sold at exe
2. Who May Redeem.-- The right of redemption is generally confined to the execution debtor and his grantee, and to judgment creditors and their assignees;? but it is held that the statutory right to redeem when given to judgment creditors applies to those in favor of whom judgment is rendered after as well as before the sale.2
cution sale, the right of creditors to re- ment creditor of the grantor; and hence, deem from the purchaser at the sale, or such judgment creditor has no statutory of one creditor to redeem from another right to redeem the property from a who had previously redeemed from the sale thereof, made under special execupurchaser, cannot be cut off by a sale of tion, at the suit of other creditors, who the land by the judgment debtor. Mc- have had the conveyance set aside in a Clean v. Harris, 14 Lea (Tenn.) 510. proceeding in equity. Howland v.
1. Herman on Executions 437, § Knot, 59 Iowa 46. 264.
In Alabama, a tender, or offer to reThe right of redemption, given by deem, on compliance with the terms of statute to judgment creditors, cannot be the statute, by the judgment debtor extended by a court of equity to cred- himself, "reinvests him with the legal itors by simple contract only, although title;" but the statute does not extend their debts are ascertained and adjudged to his alienee or assignee, whose rights, by the decree. Seals v. Pheiffer, 77
Seals v. Pheiffer, 77 if any passed by the assignment (a Ala. 278. See also Woods 2'.McGavock, question which is not decided), can 10 Yerg. (Tenn.) 133; Hopkins z'. Webb, only be enforced in equity. Searcey v. 9 Humph. (Tenn.) 519.
Oates, 68 Ala. 111. The assignee of a judgment creditor In Illinois, it is held that the mere is said to be a judgment creditor, in con- act of redeeming from a judicial sale templation of law. Sweezey v. Chan
Sweezey v. Chan- may be done by one not having the dler, 11 Ill. 445; Stein v. Chambless, 18 right to redeem, as well as by one hav
ing such right, provided the purchaser 2. Couthway v. Berghaus, 25 Ala. 393. sees proper to accept of the amount of See also Julian v. Beal, 26 Ind. 220; the charge or encumbrance,and the effect McMillan v. Richards, 9 Cal. 365; s. c., of such redemption will be to divest all 70 Am. Dec. 655.
the rights acquired under the sale. If Who May Redeem in Particular Cases. the redemption be made by a judgment -The vendee of an execution defend- creditor, in order to be availing to him ant, whose lands are sold at execution under his statutory right to redeem, and sale, may redeem the lands to which he to pass the title in case of a second sale holds title from such sale, although the in satisfaction of his own judgment, he judgment defendant may have appealed must have a valid execution, followed the case. Thayer v. Coldren, 57 Iowa by a sheriff's deed executed in con110.
formity with the statute. It does not In the same State it is held that follow that because a redemption in fact where the plaintiffs and others obtained has been effected, the redeeming creditor a decree subjecting certain premises to will get a good title to the land, without the payment of their judgments in the the existence of the conditions named. order of their priority, and one execu- Meyer v. Mintonye, 106 Ill. 414. Comuon issued in the name of all, and the pare Bennitt 2. Wilmington Star Minexecution sale was for the benefit of all, ing Co.,18 Ill. App. 17. but the proceeds were exhausted in In Indiana, the statute mentions five paying prior judgments, the plaintiffs classes of persons who may redeem, would not have the right to redeem from but they are all either owners of the such sale. An execution creditor can- real estate or some interest therein, their not redeem from his own sale. Hayden personal representatives and assigns, or 7. Smith, 58 Iowa 285. And where a creditors holding junior liens of record party conveys his real estate with the thereon. 2 Works Ind. Pl. & Pr.; $ 1191. intent to defraud his creditors, the con- See also Green 7'. Doane, 57 Ind. 186; veyance is absolute as to him, and he Fletcher v. Homes, 25 Ind. 458; Whisattains no equitable interest therein nand v. Small, 65 Ind. 120. which is the subject of a lien, under our The statute should, however, be liberstatute, in favor of a subsequent judg- ally construed. Green 7'. Doane, 57
3. Time and Manner of Redemption.—The time and manner of redemption must depend upon the statute governing each particular case, and that statute must be followed in all material respects. The time of redemption is to be determined by excluding the first day and including the last day of the statutory period. Nothing but money, or that which the law recognizes
Ind. 186. See also Hervey v. Krost ham v. Kuper, 61 Cal. 331; Gross v. (Ind.), 19 N. E. Rep. 125. See gener Fowler, 21 Cal. 392; People v. Luther, ( ally upon this subject Rorer on Judicial i Wend. (N. Y.) 42. Sales, $$ 1157, 11Šo; Herman on Exe- This period begins to run on the day cutions, § 264; and as to the right of that the purchaser completes his purthose interested to redeem in case of a chase by the payment of his bid. Ligmortgage, see 2 Jones Mort., § 1055, et gett v. Firestone, 96 Ind. 260. See also seq.
Maina v. Elliott, 51 Cal. 8; York v. 1. Eiceman v. Finch, 79 Ind. 511; Briscoe, 67 Ill. 533. Morss v. Purvis, 68 N. Y. 225; Davis v. Redemption After Statutory Period.Seymour, 16 Minn. 210; Spoor v. Phil. The court cannot ordinarily extend the lips, 27 Ala. 193; Wilcoxson v. Miller, time for redemption beyond the statu49 Cal. 193; Ex parte Bank of Monroe, tory period. Hughes v. Feeter, 23 Iowa 7 )
Hill (N. Y.) 177; s. C., 42 Am. Dec. 547. * Compare Carroll v. McCullough, 61; Waller v. Harris, 20 Wend. (N.Y.) 63 N. H. 98; Rose 2. Mead, 5 Gilm. . 555; s. c., 32 Am. Dec. 590; Miller v. (111.) 171; Lowry v. McGhee, 8 Yerg.
Ill) Lewis, 4 N. Y. 560. Compare Hall v. (Tenn.) 242. Thomas, 27 Barb. (N. Y.) 58; People v. But it may be done by agreement of Ransom, 2 Hill (N. Y.) 58.
parties. Miller v. Lewis, 4 N. Y. 554; The following case arose in Indiana, Rector v.
Rector v. Shirk, 92 Ind. 31. under a statute allowing one year for It is competent for the purchaser of redemption: A recovered a personal real estate at sherift's sale to suffer the judgment against B in 1870. C after- land to be redeemed from such sale, wards also recovered a personal judg- after the expiration of the year allowed ment against B, and on execution by law for such redemption and before thereon bid off B's land, after which A the execution of the sheriff's deed, and foreclosed an older mortgage upon the if he agree to such redemption, and acsame lands, not making C a party to his cept the redemption money, he will be foreclosure suit. After C received his After C received his estopped to deny the right to redeem.
. deed from the sheriff, the land was sold Taggart v. McKinsey, 85 Ind. 392. See to A by the sheriff upon an execution also Goddard 2. Renner, 57 Ind. 532; on A's judgment and on his decree Phyfe v. Riley, 15 Wend. (N. Y.) 248. jointly, and in due time A received a Šuch an agreement, although verbal, sheriff's deed. Held, that C, after the is not void under the statute of frauds. lapse of a year from A's purchase, could Butt v. Butt, 91 Ind. 305; McMakin 2. not redeem; aliter, if A's purchase Schenck, 98 Ind. 264. See also Marlatt had been upon his decree of foreclosure V. Warwick, 18 N. J. Eq. 108; Southard only. Cummings v. Pottinger, 83 Ind. v. Pope's Exrs., 9 B. Mon. (Ky.) 261: 294
Turner 2. King, 2 Ired. (N. Car.) 132; Formalities may, however, he waived S. C., 38 Am. Dec. 679. by the parties. People v. Ransom, 4 The following facts were alleged in Den. (N. Y.) 148; Blair v. Chamblin, the complaint in a recent case: 39 Ill. 521; s. C., 89 Am. Dec. 322; In owned a certain lot upon which was a matter of Eleventh Avenue, Si N. Y. mortgage debt due B. The lot was 436, 452; Kell v. Worden, 11o Ill. 310; sold under an execution for another
v Kilbride 1. Munn, 55 Iowa 445; Tag- debt and was purchased by B, who gart v. McKinsey, S5 Ind. 392; Bagley represented to A, who was å foreigner
, v. Ward, 37 Cal. 129; Allen v. Mc- and uninformed on the subject, that the Gaughey, 31 Ark. 252.
lot was not subject to redemption un2. Teucher 7Hiatt, 23 Iowa 529; Ex less the mortgage debt was also paid, parte Bank of Monroe, 7 Hill (Ń. Y.) but promised to hold the same in trust 177; S, C., 42 Am. Dec. 61; Rorer on until the rents and profits paid the judyJudicial Sales, § 1183; Herman on ment and ten per cent. interest, and also Executions, 438, 265. See also Per- the mortgage debt. These representa12 C. of L.-16
as a legal tender, will be accepted in payment of the amount due.1 And it must be paid to the person and in the manner prescribed by the statute under which the redemption is made.2 tions are alleged to have been false and chaser
and his grantee to redeem the fraudulent. Repairs being required on land. Tarkington v.Conley, 59 Iowa 28. the premises, B was let into partial pos- 1. Dougherty v. Postgate, 3 Iowa session and made repairs, which, by 92; Rorer on Judicial Sales, Š 1181; agreement, were to be included in the Lytle v. Etherly, 10 Yerg. (Tenn.) 389; debt. Subsequently the lot was sold People v. Mayhew, 26 Cal. 655. under the mortgage without relief from The holder of a sheriff's certificate of valuation or appraisement laws, al- purchase of real estate sold on execution though the mortgage did not authorize cannot defeat a redemption in a case this, and the property was purchased where the clerk receives in good faith by B, who had been let into full posses- the amount necessary to redeem in sion and who now claims to hold an ab- bank notes, deposits them in bank and solute title to the property, although the has continuously, from the time of the time for redemption has not yet expired. receipt, lawful money ready for the It is alleged that the rents and profits holder of the certificate, which he is since the property has been in posses- willing to deliver, and does tender, to sion of B, have more than paid both him; and where such facts appear in debts, interest and repairs. A offered the complaint, in an action to set aside to pay any balance due on an account the sheriff's deed executed after such being taken, and demands judgment for redemption, and to quiet title to the any excess of payment and possession land, the complaint is sufficient on deof the property. Held, that the com- murrer. Boyd v. Olvey, 82 Ind.
294. plaint contains a good cause of action, See also Webb v. Watson, 18 Iowa Scheffermeyer 2. Schaper, 97 Ind. 70. 537; Hall v. Fisher, 9 Barb. (N. Y.) 17; See also Felton v. Smith, 84 Ind. 485. Buford v. Henzier, 8 Biss. (U. S.) 177.
In another recent case, arising in Iili- But compare People v. Hays, 4 Cal. 127; nois, it appeared that land was sold on People v. Baker, 20 Wend. (N. Y.) 602. execution, at a grossly inadequate price, 2. In some States it may be paid to and bid in by one who was the family the officer who made the sale. Elkin physician of the debtor, and regarded v. People, 3 Scam. (111.) 207; People v. as an intimate friend and advisor, the Baker, 20 Wend. (N. Yij 602. In debtor being an aged, illiterate person, others to the clerk of the court. Webb almost wholly ignorant of his legal v. Watson, 18 Iowa 537. In others it rights. The purchaser promised to give is sufficient to offer to credit the debtor the debter all the time he wanted to re- with the amount where the creditor redeem, telling him he had fifteen months deems. Moore v. Gore, 35 Ala. 701. in which to redeem, and by artifice and See also Elkin v. People, 3 Scam. (ill.) misrepresentation lulled him into a 207; s. C., 36 Am. Dec. 541, and note; sense of security until the time of re- Freeman on Executions, $ 318. demption had passed, with the knowl- The holder of the certificate of sale, edge and participation of the assignee of and not the assignee of the judgment, is the certificate of purchase, to whom a
entitled to the redemption money. sheriff's deed was made. It was held, that Brown v. Harrison, 93 Ind. 142. the debtor, under these circumstances, A, B and C, in consecutive order of was entitled, on bill in equity, to redeem time, obtained judgments against D, from the sale, and have the sheriff's deed which became liens on the debtor's real set aside as a cloud on his title. Palmer estate. A's judgment was satisfied by 7'. Douglas et al., 107 111. 204. See also sheriff's sale of the real estate to A, Fletcher v. McGill, 110 Ind. 395. and B, within the proper time, redeemed
But where a purchaser at an execu- by virtue of his judgment, paying the tion sale, after the sale, offered to con- proper sum to the clerk, which the vey to the execution debtor the land clerk, upon demand, paid to A as for such purchased, upon being paid a certain redemption. B's judgment was afamount within a certain time, which terwards reversed for error, and reamount the debtor agreed to pay within manded, and another trial resulted in the time named, if he could raise it, but another judgment in his favor. B then failed to perform on his part, it was brought suit against A, C, D, and the held, that these facts would not support sheriff, alleging these facts, and that D an action by the debtor against the pur- still owned the land, and was otherwise
4. Effect of Redemption.—“The effect of redemption from execution sale by the execution debtor, or his assigns or grantec, is merely to terminate the sale and restore the property to its original condition. It confers no new right.”'l But a judgment creditor who redeems is said to be substituted to the rights of the purchaser.2
JUNK-SHOP.-A place where odds and ends are purchased and sold. 3
insolvent. Held, that the complaint S, and w, by deed of quitclaim, conas against C and D was good on de- veyed to the appellant. The plaintifi" murrer. Held, also, that A, having ac- finally obtained a sheriff's deed upon cepted the redemption money, waived sale to satisfy its mortgage, and brought any irregularity in the redemption, and this suit for possession. that Can D could not question the Held, that the transaction between regularity of the redemption. Iteld, W &
W & S and H was in equity a redempalso, under the Indiana Redemption act tion of the property from the sale upon of 1879, that a judgment upon the facts the judgment, and a payment by them stated in the complaint for costs against of the judgment, and that the paper C and D, and that the plaintiff have ex- title acquired by them, under the cirecution on the original judgment in cumstances, could not be interposed favor of A, was not erroneous. Carver against the plaintiff. Shanklin 2. Howard, 92 Ind. 173.
Franklin Life Ins. Co., 77 Ind. 268. Under the Indiana redemption law The owner of land sold under exof March 31st, 1879 (acts 1879, p. 176), ecution may redeem it without paying the owner of land sold by the sheriff
, at the taxes paid on it by the purchaser the time of the sale, may redeem the since his purchase. They are no part land from such sheriff's sale, but the of "the lawful charges” required by the statute does not give such owner any statute. The purchaser's remedy for lien upon the land for the amount of them is by action at law. Fuller i. money paid by him in such redemption. Evatt, 42 Ark. 230. Groves v. Barber, 98 Ind. 309.
1. Rorer on Judicial Sales, § 1194. Where a judgment debtor has a See also Stein v. Chambless, IS Iowa naked right to redeem certain real 474; Titus . Lewis, 3 Barb. (N. Y.) estate, by the payment of a certain sum 70; State v. Sherill,
57; Taggart of money, the lien of the judgment, if V. McKinsey, 85 Ind. 392; Bodine z'. any, on such right to redeem, will not Moore, 18 N. Y. 347; Warren v. Fish, entitle the judgment plaintiff to demand 7 Minn. 432. from the owner of the fee, in such real 2. Rorer on Judicial Sales, § 1195; estate, an accounting for rents and and Freeman on Executions, § 321.
See profits thereof. Wilhelm v. Humphries, also and compare Clayton 7. Ellis, 50 97 Ind. 520.
Iowa 590; Allen v. McGaughey 31 The plaintiff had a suit pending to Ark. 252; Settlemire v. Newsome, 10 foreclose a mortgage on real estate on Oreg. 446; Fischer
Oreg. 446; Fischer 2. Eslaman, 68 which A had a junior lien by judgment. Ill. 78; Rice v. Puett, 81 Ind. 230; A valid agreement was made between Eldridge v. Wright, 55 Cal. 531. the debtor and W & S by which W & Authorities for Judicial Sales.-Rorer S undertook to pay the judgment, on Judicial Sales; llerman on Execuwhereupon the plaintiff dismissed its tions; Freeman on Executions; Freesuit as against A. Execution was man on Void Judicial Sales; and for issued on A's judgment, upon which particular branches of the subject, see I purchased the property, satisfying Jones on Mortgages and the various text the judgment and taking a certifi- books on Executors and Administrators, cate of purchase, and then W& Guardian and Ward, and Trusts and S paid him what he had bid, and there. Trustees, besides valuable notes in after he held the certificate as their many of the American Decisions. trustee and to indemnify himself as 3. A store where old metals, ropes, their surety on another matter. At the rags, etc., are bought and sold, is a proper time he received a sheriff's deed, junk-shop, within the meaning of a and then, having been released as surety, licence act. City Council of Charleston he conveyed to W, with the consent of 2. Goldsmith, 12 Rich. (S. Car.) 470.