Against Property;-Surplus;-Redemption of Real Property;-Who may Redeem.

the return. Supreme Ct., 1845, Davis v. Wey- subject to the control of the court, and a burn, 1 How. Pr., 153.

junior judgment-creditor may obtain an order for their payment upon his execution. Supreme Ct., 1828, Van Nest v. Yeomans, 1 Wend., 87.

435. Compelling return. After an order made, staying proceedings upon an execution in the hands of the sheriff, the plaintiff's attorney served upon the sheriff notices requiring him to return the execution in ten days, or show cause why an attachment should not | Id., 628. issue against him for contempt.

And this though the lien of his judgment has expired. 1836, People v. Ulster C. P., 18

441. A grantee of the debtor,-Held, en Held, on subsequent application for an at-titled to the surplus arising from a sale of th tachment:-1. That the stay of proceedings, land under a prior judgment, in preference to if it continued in force up to the expiration of a creditor having a judgment subsequent to the ten days, exonerated the sheriff from the the grant. Supreme Ct., 1831, Every v. Edgerduty to return the execution. 2. That the ton, 7 Wend., 259. plaintiff's attorney was bound, if the stay had been vacated, and he desired to bring the sheriff into contempt, to furnish him with proof that the stay was no longer in force. Supreme Ct., Sp. T., 1856, People v. Carnley, 3 Abbotts' Pr., 215.

436. The New York Superior Court has power to compel the sheriff of a foreign county to return an execution issued from that court, as incident to the authority to issue the same. N. Y. Superior Ct., 1848, Shindler v. Blunt, 1 Sandf., 683.

437. Cancelling return. The Supreme Court has power to authorize a sheriff to withdraw from the files an execution, and to cancel a return of nulla bona made thereon; and a return which has been thus cancelled does not conclude or estop the sheriff from suing for a conversion of the property committed before the return was made. Ct. of Appeals, 1856, Barker e. Binninger, 14 N. Y. (4 Kern.), 270. As to the mode in which an execution must be returned to serve as a foundation for Supplementary proceedings, see SUPPLEMENTARY PROCEEDINGS.

9. Surplus.

438. Order for application of. A surplus in the sheriff's hands, arising from a sale on execution, ordered to be paid over on a fi. fa. issued at the suit of another plaintiff. Ball v. Byers, 3 Cai., 84.

439. Doubtful cases. The court will not interfere on motion as to the disposition of a surplus where the equitable rights of the claimants are not clearly ascertained. Supreme Ct., 1809, Williams v. Rogers, 5 Johns.,

163.

440. Power of court. While surplus moneys remain in the sheriff's hands, they are

442. Defendant's receiving the surplus proceeds of the sale under the execution,Held, to be no bar to his setting up title against the purchaser, upon the reversal of the judgment, where he did nothing to encourage the purchaser to bid. Ct. of Errors, 1831, Wood v. Jackson, 8 Wend., 9.

443. The liens of judgment-creditors, if the land be sold on a prior one, are transferred to the surplus, which must be applied to them in their order of priority. [1 Paige, 558, 181.] Supreme Ct., 1849, Averill v. Loucks, 6 Barb., 470.

444. A purchaser of a sheriff's certificate of sale of lands, under a judgment which was satisfied by such sale, cannot afterwards obtain surplus moneys in the sheriff's hands, which have arisen on the sale to himself of the same land on an older judgment, or have the same applied to the judgment under which he holds his certificate. Supreme Ct., 1845, Smith v. Caswell, 1 How. Pr., 133.

10. Redemption of Real Property.

A. Who may Redeem.

445. Sale before act of 1820. A sale of land on execution (in 1819, prior to the act allowing redemption of lands sold on execution), divests the debtor's title, so that a judgment obtained thereafter, though while he is in possession, is not a lien, and its owner cannot redeem from the sale. Supreme Ct. 1824, Hurd v. Magee, 3 Cow., 35.

446. Though it be alleged that the sale was fraudulent, the court will not try the question summarily. Ib.

447. Sale in foreclosure. The act of 1820,directing the officer, where lands are sold by virtue of an execution, to delay giving a deed, so as to give the debtor time to redeem within

Against Property ;-Redemption of Real Property;-Who may Redeem.

one year,-does not apply to the case of a sale, by a master, of mortgaged premises under a decree, nor, it seems, to a sale by a mortgagee under the power. Chancery, 1820, Ten Broeck v. Lansing, 4 Johns. Ch., 601.

455. Debtor, &c. The person against whom the execution was issued, and whose right was sold, or his devisee thereof, or heirs, or his grantee thereof, who has acquired absolute title may redeem within one year. 2 Rev. Stat., 370, § 46. 456. Owners of portions and undivided shares,

448. A mortgagor, whose equity of redemp--how to redeem. 2 Rev. Stat., 371, §§ 47, 48. tion has been sold on execution, has, under the act of 1820, for one year, a right to redeem. Chancery, 1820, Hallock v. Smith, 4 Johns. Ch., 649.

449. Separate parcel. Where land is sold in several parcels to one person, a single parcel may be redeemed. Supreme Ct., 1823, Dickenson v. Gilliland, 1 Cow., 481.

457. Trustees of an absent debtor, being vested with all his estate by 2 Rev. Stat., 15, § 3; 41, § 6, are entitled to redeem his real estate from a sale under execution, within a year. [2 Rev. Stat., 370, § 46.] Supreme Ct., 1836, Phyfe v. Riley, 15 Wend., 248.

458. One who has redeemed not a grantee. One who has acquired an equitable right, 450. Estate for years. A judgment is not by redeeming under a sheriff's sale, but who a lien upon a term for years, for that is not has not received a deed, is not a grantee lands or tenements; hence, though the party within the statute, and cannot redeem from may redeem such a term, a judgment-creditor a sale under an older judgment, from a strancannot. Supreme Ct., 1824, Merry v. Hallet, 2 | ger who had nothing to do with the delay of Cow., 497; S. P., 1821, Putnam v. Westcott, his deed. Supreme Ct., 1839, Lathrop v. 19 Johns., 73; and see Evertsen v. Sawyer, Ferguson, 22 Wend., 116. 2 Wend., 507.

1

451. Sale before Revised Statutes. Under a sale had before the Revised Statutes went into operation, the right of redemption is governed wholly by the previous law. Ct. of Errors, 1843, Huntington v. Forkson, 6 Hill, 149; overruling People v. Haskins, 7 Wend., 463.

459. A judgment-creditor of one of several tenants in common, has no right to redeem from a purchaser who acquired the whole estate. The right to redeem is only coextensive with the lien. Supreme Ct., 1822, Erwin v. Schriver, 19 Johns., 379.

460. Extinguished lien. A sale under a judgment for less than its amount, and a deed 452. Leasehold. The term real estate (2 to the purchaser, extinguishes its lien upon the Rev. Stat., 293, § 42), does not include terms land, so that the judgment-creditor cannot for years; and though a judgment or decree is a redeem from a sale under a senior judgment. lien upon such terms, they are not subject to re- [8 Johns., 383.] Supreme Ct., 1825, Exp. demption after sale. Ct. of Errors, 1838, Wes-Stevens, 4 Cow., 133. tervelt v. People, 20 Wend., 416; affirming S.C., 17 Id., 674. Compare COVENANT, 103–107. Otherwise, in some cases by the Laws of 1837, 540.

461. A sale of the land upon an execution extinguishes the lien of the judgment, though the plaintiff himself bid in the land; and he cannot thereafter redeem, by virtue of the 453. The act of 1837 (2 Rev. Stat., 3 ed., 472, | judgment, from a sale under a prior judgment. §76)—which extends the right of redemption Supreme Ct., 1829, People v. Easton, 2 Wend., to leasehold property, "where the lessee or 297. his assignee is possessed of at least five years' 462. A levy on sufficient personal property unexpired term of the lease, and also of any extinguishes the judgment [2 Ld. Raym., 1072; buildings that may be erected thereon"-refers 4 Mass., 403; 12 Johns., 207; 7 Id., 428]; and to five years from the time of the sale. If the unexpired term be less than five years, a covenant of renewal in the lease cannot be regarded as a virtual prolongation of the term. Supreme Ct., 1844, Exp. Wilson, 7 Hill, 150. 454. Joint-owners. If only one of several joint-owners goes to the sheriff on redeeming, the absence of the others does not invalidate the purchase. Supreme Ct., 1844, Beekman •. Bunn, Hill & D. Supp., 265.

the creditor cannot thereafter redeem the debtor's land sold upon other executions. Supreme Ct.,1825, Exp. Lawrence, 4 Cow., 417.

463. If the creditor, after such levy, proceed to sell lands, the court will, on motion of a bona-fide purchaser, order a perpetual stay. Supreme Ct., 1831, Wood v. Torrey, 6 Wend., 562. Followed, Sp. T., 1848, Voorhees v. Gros, 3 How. Pr., 262.

464. A judgment more than ten years old

Against Property ;-Redemption of Real Property;-Who may Redeem.

remains a lien, as against the defendant in the execution; it ceases to be a lien, only as against bona-fide purchasers, &c. [1 Rev. L. of 1813, §1]; and the owner of it may redeem as a junior judgment-creditor, from a sale against such defendant under a judgment less than ten years old. As between two such judgments, they take priority from the time of their docketing. Supreme Ct., 1827, Exp. Peru Iron Co., 7 Cow., 540. Compare Tufts e. Tufts, 18 Wend., 621.

Ct., 1823, Van Rensselaer v. Sheriff of Albany, 1 Cow., 501.

473. Creditor. If the owner, his heir, devisee, or grantee does not redeem within a year, any creditor by judgment or decree in his own name or as assignee, representative, trustee, or months from the sale, or a mortgage recorded otherwise, rendered before expiration of fifteen within that time, being a lien on the premises or any parcel separately sold, may redeem; and any other like creditor may redeem from him. 2 Rev. Stat., 371, § 51 (as amended, 2 Laws of 1847, 508, ch. 410), § 52.

474. How to redeem in case of a lien on an

undivided share, or a portion of lots. Id., 372, §§ 53, 54.

465. Judgment confessed. The fact that the judgment of the redeeming creditor was confessed for the express purpose of enabling him to redeem, is no objection, if it was on full consideration. Supreme Ct., 1824, Snyder | which the land was sold cannot redeem, even . Warren, 2 Cow., 518.

475. The plaintiff in an execution under

though the purchase-money was wholly ap

466. An assignee of a judgment is a judg-plied to prior executions. In such case, in orment-creditor, and may redeem. Supreme Ct., 1823, Van Rensselaer v. Sheriff of Onondaga, 1 Cow., 443.

467. Justice's judgment. A creditor by a justice's judgment, though obtained on attachment, the transcript being duly filed, may redeem. Supreme Ct., 1825, Exp. Carmichael, 5 Cor., 17.

der to secure payment, he should have withdrawn his execution or bid higher. Supreme Ct., 1842, Exp. Paddock, 4 Hill, 544; and see Muir v. Leitch, 7 Barb., 341.

476. The plaintiff under whose execution the land was sold, cannot redeem by virtue of the judgment or decree on which it issued. [2 Rev. Stat., 373, § 58.] Supreme Ct., 1839, 468. A creditor under a senior judgment People v. Baker, 20 Wend., 602. Ct. of Apmay redeem from a sale under a junior judg-peals, 1849, People v. Fleming, 2 N. Y. (2 ment-creditor. Supreme Ct., 1827, Exp. Peru Comst.), 484; affirming S. C., 4 Den., 137. Iron Co., 7 Cow., 540.

469. If a junior judgment-creditor purchases at an execution sale and another creditor redeems from him, he may in turn redeem from the latter; but if he fails to do so within the 15 months, he is not entitled to a deed, and this though his judgment had priority over that of the latter, and was not paid by the latter. Supreme Ct., 1827, Jackson v. Budd, 7 Cow, 658.

470. After a sale, any judgment-creditor having a lien, may redeem without reference to priority between his and other liens, and without paying such other liens. Ib.

471 Judgment after sale. A judgment obtained intermediate the sale and the time fixed for redemption, is a lien, within the law authorizing a redemption. Supreme Ct., 1823, Van Rensselaer v. Sheriff of Onondaga, 1 Cow., 443; Van Rensselaer o. Sheriff of Albany, Id., 501; 1827, Exp. Peru Iron Co., 7 Cow.,

477. As to any other judgment held by him, he has the same rights under the statute as any other creditor. Ct. of Appeals, 1849, People v. Fleming, 2 N. Y. (2 Comst.), 484.

478. A judgment-creditor who sells and acquires title under his judgment, cannot redeem as a creditor upon a sale under a prior judgment. Chancery, 1843, Russell v. Allen, 10 Paige, 249.

479. Sale under several judgments. Where a sheriff makes a sale of land on several judgments, the purchaser takes his title under each; and therefore another judgment-creditor, in order to acquire the rights of the purchaser, must be entitled to do so in respect to all of them. Ct. of Appeals, 1849, People v. Fleming, 2 N. Y. (2 Comst.), 484.

480. Several creditors. The statute nowhere expressly provides for a concurrent redemption by, and apportionment among, creditors holding judgments docketed at the same instant; and though the parties stipulate to 472. Mortgage. Under the act of 1820, a divide whatever moneys might be realized tortagee has no right of redemption. He is thereon among them, the court cannot enforce nt a grantee within the statute. Supreme such arrangement by mandamus. If one can

540.

VOL. III.-4

Against Property;-Redemption of Real Property;-Who may Redeem.

redeem from another, he must at least tender ments older than his: he must pay the amounts him the amount paid by him on redeeming, bid. Supreme Ct., 1845, Barker v. Gates, 1 with interest. Supreme Ct., 1841, Exp. Ives, | How. Pr., 77. 1 Hill, 639.

485. Assignee of judgment. One holding an absolute assignment of a judgment, is en- 491. Forbearance. Agreeing with the titled to redeem as assignee under the statute, debtor to give time for payment of a judgment though he has paid but a trifle, and the pay- does not preclude the creditor from redeemment of the residue of the consideration de-ing. Supreme Ct., 1849, Muir v. Leitch, 7 pends on a contingency. Supreme Ct., 1845, Exp. Raymond, 1 Den., 272. Compare Beekman v. Bunn, Hill & D. Supp., 265.

Against Property ;-Redemption of Real Property;-Within what Time;-Evidences of Right to Redeem.

the defendant in the execution. Ct. of Errors, to creditors to redeem, are calendar, not lunár 1846, Hodge. Gallup, 3 Den., 527. Other- months. Ib. wise, under the statute as amended in 1847, 9. D., supra, 473.