Huntington v. Forkson. HUNTINGTON and another vs. FORKSON. Under the act of 1820, relating to the redemption of lands sold on execution, a creditor whose judgment was a lien on only a part of the premises sold, acquired no right to redeem the whole. The provision in the revised statutes giving this right applies only to sales made after the 1st of January, 1830, and was not intended to operate retrospectively so as to interfere with purchases previously made. Accordingly, where real estate was sold on execution in October, 1829, and a judgment creditor, whose lien extended only to a portion of the property sold, sought to redeem the whole under the revised statutes; held, that he had no such right. A creditor can in no case redeem by virtue of a lien upon a portion of the debtor's property not sufficiently described in the sheriff's advertisement &c. Per ROOT, senator. Whether a rent-charge reserved upon a lease in fee can be sold on execution as real estate and redeemed by a creditor, quere. ON error from the supreme court, where Huntington and Payn brought ejectment against Forkson, to recover the possession of a farm situated in Rensselaer county, originally containing one hundred and twenty-five acres, and which was conveyed to Payn by one Woodworth, in September, 1806. On the trial in the court below the jury found a special verdict, which, after setting forth Payn's title derived from Woodworth, stated the following facts, among others, viz: That in October, 1806, Payn executed a perpetual lease to John Burhans of three acres, parcel of the farm in question, reserving an annual rent, and a right of distress and re-entry in case of non-payment. That in April, 1812, and in April, 1815, Payn executed two other and similar leases, the one to William Bissell, and the other to Braddum Yale, each conveying one acre and a half, parcel of the said farm. That Burhans, Bissell and Yale took immediate possession under their respective leases, and have continued to occupy the lands thereby conveyed ever since. That on the 28th day of February, 1823, a judgment was recovered in the supreme court by Joshua Bloore against Payn, which was subsequently revived by scire facias. That on the 14th of December, 1824, Payn sold and conveyed the whole of the farm Huntington v. Forkson. in question to William Hull, excepting the lots which he had before leased to Burhans, Bissel and Yale. That on the 26th of April, 1826, Philip Barringer obtained a judgment in the supreme court against Payn, which was subsequently assigned to one Rosekrans. That on the 9th day of August, 1828, another judgment was recovered against Payn, by Huntington, one of the plaintiffs below. That writs of fieri facias were afterwards issued upon the judgments in favor of Bloore and Huntington, on which the sheriff advertised and sold all Payn's right and title to the one hundred and twenty-five acres in dispute. That the sale took place on the 24th of October, 1829, several miles from the premises, and Huntington became the purchaser. That within the time allowed for creditors to redeem, Rosekrans, the assignee of the judgment in favor of Barringer, paid to the sheriff the amount bid by Huntington, with the interest, claiming to be entitled to a deed. And that the sheriff executed a deed to Huntington, and afterwards executed a deed to Rosekrans. The special verdict further stated that, "in and by the said deed from Payn to Hull, the said lands and tenements set forth and described in the said advertisement of sale, in the certificate thereof, and in the deeds executed by the said sheriff to Huntington and Rosekrans, and every part and parcel thereof, were sold and conveyed to the said Hull, his heirs and assigns forever, excepting so much thereof as was conveyed as aforesaid by the said Payn to the said Burhans, Bissell and Yale." Huntington contended in the court below that he was entitled to judgment upon the facts found by the special verdict, on the ground that he was the purchaser at the sheriff's sale, and that Rosekrans had no right to redeem. The court below, however, rendered judgment in favor of the defendant, for the reasons stated in their opinion given upon a motion made by Rosekrans to compel the sheriff to execute a deed. (See The People, ex rel. Rosekrans, v. Haskins, Sheriff &c., 7 Wend. 463 et seq.) Huntington and Payn thereupon brought error to this court. Huntington v. Forkson. N. Hill Jun. & D. Cady, for the plaintiffs in error, relied mainly upon the following points: 1. The judgment in favor of Barringer was not a lien on any portion of the premises sold by the sheriff, and therefore Rosekrans had no right to redeem. It will be said, however, that the judgment was a lien on Payn's interest in the lands leased in fee to Burhans, Bissell and Yale. This we deny. The creation of these leases passed the whole estate immediately to the tenants, who took subject to the condition that they would pay the stipulated rent; and so long as they performed this condition, and no actual entry was made, their estate remained precisely the same as if no qualification had been annexed to it. (Shep. Touch. 153; 4 Kent's Comm. 122 to 125; Springstein v. Schermerhorn, 12 Johns. Rep. 357, 361, 2.) The clause of distress and re-entry provides for a mere possible right in the lessor; but the possibility is too remote to be deemed a present, subsisting estate or interest in the land. (See 1 Hill. Abr. 322, 409, 410; Springstein v. Schermerhorn, 12 Johns. Rep. 361, 2.) The provision for distress, moreover, is a mere license to enter for the purpose of seizing goods by way of satisfying the rent, and reserves no right in the land. (2 Leigh's N. P. 785; 1 Hill. Abr. 156, 54; Gilb. On Dist. 1, 2; 2 Chitty's Bl. Com. 6, note (8).) 2. Even if a rent-charge reserved upon a lease in fee may be sold on execution, still it is not the subject of redemption. The supreme court concede that Rosekrans' claim to occupy the place of a redeeming creditor depends upon 2 R. S. 372, i 53; and in order to bring him within that provision, it must appear that his judgment was a lien on a specific portion of a lot, tract or parcel sold. These terms are to be construed strictly as against a creditor claiming to redeem, (Waller v. Harris, 20 Wend. 555,) and are properly applicable only to land. They do not embrace a mere rent-charge, reserved upon a lease in fee. (Shep. Touch. 80, 91.) 3. Again, the special verdict does not show that Payn's interest in these rents was in fact sold by the sheriff; and this is conclusive against Rosekrans' claim to redeem. The sheriff's proceedings should be presumed regular, until the contrary ap Huntington v. Forkson. pears. But if he sold in one mass, and without any other discrimination than appears by the special verdict, not only all the lands which belonged to Payn when the Bloore judgment was docketed, but also the rents in question, the sale was palpably irregular, if not absolutely void. (Jackson v. Striker, 1 Johns. Cas. 284; Jackson v. Rosevelt, 13 Johns. Rep. 97, 102, 3; Jackson v. Delancy, id. 537, 551, 2; Jackson v. Newton, 18 id. 355, 362; Lindendoll v. Doe, 14 id. 222; Sheldon v. Soper, id. 352; Rowley v. Brown, 1 Binn. Rep. 61.) 4. But the sale took place under the act of April 12th, 1820; (Sess. Laws of 1820, p. 167;) and Rosekrans acquired no right to redeem unless his judgment was a lien on the whole of the premises sold, which is not pretended. At all events, his right to redeem, if allowed, could only be co-extensive with his lien, and this would restrict him to the rents. (Matter of Erwin v. Schriven, 19 Johns. Rep. 379, 380; 3 R. S. 728, 2d ed.) 5. The revised statutes do indeed give the right to redeem, even where the creditor's lien extends only to a portion of the thing sold; (2 R. S. 372, § 53 ;) but they are inapplicable to this case. By the sale to Huntington he acquired an absolute right to a deed as against all persons not entitled to redeem under the act then in force, of whom Rosekrans was one; and as the revised statutes were passed subsequently, they ought not to be allowed to operate retrospectively, so as to take away or impair this right. (2 R. S. 779, 5; Dash v. Van Kleeck, 7 Johns. Rep. 477; Terrington v. Hargreaves, 3 Moore & Payne, 137, 143; 1 Kent's Comm. 454, 5; The Thames Manufacturing Co. v. Lathrop, 7 Conn. Rep. 550, 556, 7; Perkins v. Perkins, id. 558, 563; Ogden v. Blackledge, 2 Cranch, 272; Couch v. Jeffries, 4 Burr. 2460, 2462; Wilkinson v. Meyer, 2 Ld. Ray. 1350, 1352; Helmore v. Shuter, 2 Show. 17; S. C. 2 Mod. 310, 1 Vent. 330.) If the opposite construction, however, is to prevail, then we insist that the provision under which Rosekrans has been allowed to redeem is a law impairing the obligation of Huntington's contract, and is therefore void. (Const. of U. S., Art. 1, 10; 1 Kent's Comm. 413 to 423; Green v. Biddle, 8 Wheat. Huntington v. Forkson. 1; Rowlett v. Shepherd, 4 Miller's Lou. Rep. 94; Bronson v. Kinzie, 1 Howard, 311.) S. Stevens, for the defendant in error, reviewed the several positions taken by the counsel for the plaintiffs in error, and stated and argued the following points: 1. That the revised statutes controlled the right of redeeming in this case, and not the act of 1820. (The People, ex rel. Fleming, v. Livingston, 6 Wend. 526.) 2. That the Barringer judgment was a lien on the rent-charge reserved by Payn in the leases to Burhans, Bissell and Yale. (Lillingston's case, 7 Coke's Rep. 129; The People v. Haskins, 7 Wend. 466, 7, and the cases there cited.) 3. That the rent-charge was a part of the real estate sold by the sheriff, and therefore Rosekrans was entitled to redeem the whole. (2 R. S. 372, 53.) PORTER, Senator. On the 24th of October, 1829, Huntington became the purchaser, at sheriff's sale, of all the right and title of Payn to the lands in dispute, and the question arising in the case is, whether Rosekrans was entitled to redeem them. It was conceded on the argument by the counsel for the defendant, that Rosekrans was not a redeeming creditor in respect to the lands in controversy, within the act of April 12th, 1820, inasmuch as his judgment was not a lien on the whole of the property sold, but only upon the rent-charge mentioned in the special verdict; and unless he was entitled to redeem in virtue of some subsequent enactment, the present defence must fail. The statute under which Rosekrans claimed to redeem, went into operation on the 1st of January, 1830, and the act of 1820 was then repealed. (2 R. S. 372, § 53; id. 779.) But by the 5th section of the repealing act it was provided as follows: "The repeal of any statutory provision by this act, shall not affect any act done, or right accrued &c., previous to the time when such repeal shall take effect; but every such act, right &c., shall remain as valid and effectual as if the provision so repealed had remained in force." (2 R. S. 779.) An important inquiry then arises, viz. whether any right accrued to HuntingVOL. VI. 20 |