Gilman v. Tucker

• Decision Date: 06 October 1891
• Citation: 128 N.Y. 190,28 N.E. 1040
• Parties: GILMAN v. TUCKER.
• Court: New York Court of Appeals Court of Appeals

128 N.Y. 190

28 N.E. 1040

GILMAN

v.TUCKER.

Court of Appeals of New York.

Oct. 6, 1891.

Appeal from superior court of New York city, general term.

Action by Cornelia Gilman against Preble Tucker for a determination of defendant's claim under a redemption, as junior creditor, from an execution sale. From an affirmance of an order of the special term denying defendant's motion to set aside a judgment in plaintiff's favor defendant appeals. Affirmed.

Esek Cowen and Charles J. Hardy, for appellant.

Charles E. Hughes, for respondent.

RUGER, C. J.

This appeal involves the construction and constitutionality of section 1440 of the Code of Civil Procedure, as amended by chapter 681 of the Laws of 1881, relating to the sale, redemption, and conveyance of real property sold on execution. The questions arise upon the affirmance by the general term of an order of the special term, denying the defendant'smotion to set aside and vacate a judgment entered herein for the plaintiff. No claim was made but that the judgment was regular and authorized by the evidence in the case, or that there was any statute or rule of law which required the court to set aside such judgment. The purposes of the act referred to, if valid, do not require an order of the court to render them effective. The contention is that the defendant is entitled to the relief asked for because the plaintiff did not within 20 days after the recovery of the judgment, make certain payments to the defendant, in default of which the section referred to declares the judgment to be of ‘no force or effect.’ Even if it be conceded that the provisions of the Code are valid, it does not follow that the defendant is entitled, as of course, to the relief demanded. It is not required by the language of the statute, and the court might well have said, in the exercise of its discretion, that the defendant should be left to the remedies which the statute gave him, and that it would not determine the controversy in a summary way upon motion. But we are disinclined to dispose of the appeal on this point, as important questions are raised by the case, which, in the interest of justice, require an early disposition.

The evidence in the case shows that previous to the commencement of this action the defendant had, as a subsequent judgment creditor of the plaintiff, acquired the right to a deed from the sheriff, by the redemption from the purchaser upon an execution sale of a house and lot in New York belonging to the plaintiff; and she, believing the sale to have been unauthorized and illegal, brought this action to compel a determination of the defendant's claim under such redemption. In answer to the action the defendant set up title in himself through the proceedings to redeem from the former judgment creditor, who had bid it in on an execution sale upon a judgment in his favor against the plaintiff. The question litigated upon the trial was as to the validity of the execution upon which such sale was had. The trial court found that it was ‘a void process, and that, therefore, the sale under that void process was also void and of no effect, and therefore the defendant Tucker could and did take no valid title by reason of his redemption from a sale which was void.’ Place v. Riley, 98 N. Y. 1. Judgment was therefore rendered in favor of this plaintiff, with costs, and that judgment was affirmed, not only by the general term, but also by this court, with costs. It is now claimed that this judgment is ineffective, because the plaintiff did not, within 20 days after its recovery, in compliance with section 1440, pay to the defendant the moneys required to be paid by that section. The section, as amended, reads as follows: ‘The right and title of the judgment debtor, or of a person holding under him, or deriving title through him, to real property sold by virtue of an execution, is not divested by the sale until the expiration of the period within which it can be redeemed, as prescribed in this article, and the execution of the sheriff's deed; but if the property is not redeemed, and a deed is executed in pursuance of the sale, the grantee in the deed is deemed to have been vested with the legal estate from the time of the sale.’ Then follows the amendment: ‘And if the title of such grantee or his assignees is adjudged, for any reason or case whatsoever, to be null and void in any action for that purpose brought by the judgment debtor, or his assigns, such judgment shall have no force or effect, unless, within twenty days after the entry of such judgment, the plaintiff shall pay to such grantee or his assigns the sum of money which was paid upon the sale, with interest from the time of the sale, as prescribed in this article, including the costs and expenses of defendant in defending the action in which such judgment was recovered, to be adjusted by a judge of the court in which said action was brought; and, in the event of plaintiff's failure to pay such purchase money and expenses within the time aforesaid, said title shall be valid in said grantee.’ It was also provided that if, in any pending action to recover such property, an appeal had been taken, the plaintiff should have 20 days from final judgment in his favor to make to payments required.

In considering the meaning and effect of the amendatory act it is desirable to have in mind the previous condition of the law on the subject. The Code of Civil Procedure, which was a substantial reenactment of the provisions of the Revised Statutes in respect to this subject, provided that on a sale of lands on execution the debtor's title should not be divested until 15 months after the sale. This period was allowed him and his judgment and mortgage creditors to enable them to redeem from the sale. The first year was allowed to the debtor, and the three succeeding months to the creditors entitled to the benefit of the redeeming statute. On the expiration of the 15 months, in case there was no redemption by the owner, the sheriff was bound to execute a deed of the premises to the purchaser on the sale, or to his assignees, or to the person entitled thereto, under the provisions of the statues relating to redemption. Section 1471. Upon a redemption by the judgment debtor, or his heirs, executors, or assignees, the sale and certificates thereof became null and void, and no conveyance, therefore, was required to be executed, as the judgment became satisfied to the extent of the sum collected and applied on the execution, and the title of the property sold remained in the judgment debtor. Section 1448. In case of a redemption by a judgment or mortgage creditor he was required not only to pay the amount specified by the statute to the person from whom he redeemed, but also to execute a satisfaction of his judgment or mortgage, stating that the redemption satisfies the judgment or mortgage in full, or to a specified amount. Section 1463. The purchaser of real property sold by virtue of an execution, who has been evicted from the possession thereof, or against whom judgment is rendered in an action to recover the same in consequence- First, of any irregularity in the proceedings concerning the sale; or, second, of the judgment upon which the execution was issued being vacated or reversed, or set aside for irregularity or error in fact,-may recover the purchase money paid by him, with interest, from the person for whose benefit the property was sold. Section 1479. In case of a sale upon a judgment based upon an ‘irregularity in the proceedings concerning the sale,’ the judgment under which the sale was made is revived and becomes valid to enable the judgment creditor to collect the sum paid on the sale, with interest. Section 1480. It is also provided that a judgment creditor, who completes proceedings for redemption, acquires all the right, title, and interest in the property which the purchaser acquired by the sale. Section 1471. The protection which this scheme affords persons who have purchased land on an illegal sale is apparently sufficient for all of the requirements of justice or equity, independent of the amended section. Thus, when such sale is declared void, the security of the judgment creditor is restored for the purpose of enabling him to reimburse himself for the moneys paid on the sale; and a purchaser on redemption, whose title is defeated for any of the causes specified, is authorized to recover the purchase money paid by him from the judgment creditor, or those who represent him. These provisions gave an adequate and sufficient remedy to all of the parties interested where there had been an illegal sale on execution. The judgment creditor lost no rights by making such sale, and the innocent purchaser and his assignees were protected as well where the judgment was founded upon irregularities in the proceedings concerning the sale as when it has been reversed or vacated. There could, of course, be no just foundation for a claim by the judgment foundation for a claim by the judgment when his judgment had, for any reason, been reversed or set aside, because, in that event, his claim would itself be extinguished, and he would have suffered no loss. A point is made by the respondent upon the language of the act that the defendant, being a redeeming creditor, does not come within its terms. By the express language of the act its provisions would seem to be operative only where the land had not been redeemed. There can be no question, we think, but that, under the language of the statute, the land had, within its meaning, been redeemed, and the defendant was therefore precluded from availing himself of its benefits. If this should be held to be the true construction of the act, its operation would then be confined to those who purchased on the sale and their assignees alone, and would thus exclude the defendant from the benefit of the act. It is contended, however, by the appellant, that a redeeming creditor comes...