Ewing v. Cook

• Decision Date: 14 January 1887
• Court: Tennessee Supreme Court
• Parties: EWING, Receiver, <I>v.</I> COOK and others.

3 S.W. 507

EWING, Receiver,

v. COOK and others.

Supreme Court of Tennessee.

January 14, 1887.

Appeal from chancery court, Williamson county.

On rehearing.

Demoss & Malone and R. M. Ewing, for appellant. Campbell & Son and Cook & Marshall, for appellees.

LURTON, J.

After full argument by counsel, this cause was decided from the bench. It is now heard upon a petition for a rehearing. The earnestness and ability of the counsel alike determined the court to give the case a careful reconsideration. The facts which raise the questions presented in the petition and argument are substantially as follows: Frank Wilson was the owner of the land in controversy, being a tract of about 350 acres, and stated to be of the value of $10,000. This land had been sold at execution sale, July 2, 1877, to satisfy two judgments against Wilson, aggregating about $400, in favor of one Caruthers. Caruthers became the purchaser at the sheriff's sale, bidding thereon his debt and costs, and took deed from the sheriff. Complainant, being a judgment creditor of Wilson in about the sum of $10,000, filed an original bill in the chancery court, on the twenty-eighth March, 1878, against Frank Wilson and Caruthers, charging that Wilson was insolvent; that he was a judgment creditor of Wilson, and that execution had been returned not satisfied. His bill stated the facts concerning the levy and sale of Wilson's land to satisfy the judgments in favor of Caruthers, and the purchase by Caruthers. He prayed that Wilson's right of redemption be sold, and the proceeds applied to the payment of his debt. No attachment or injunction was sought. The next day after the filing of this bill Ewing redeemed this land from Caruthers, and took deed. September 2, 1878, and while this bill was pending, the judgment debtor, Wilson, assigned and transferred the land in question to the defendant H. H. Cook, in trust to secure certain creditors therein named, and authorizing Cook, as his trustee, to redeem this land for the benefit of his creditors thus secured. In December, 1878, Wilson died, leaving a will, by which he devised his interest in this land to Cook in trust for the benefit of the testator's minor children. A few days before the time of redemption expired, Cook offered to redeem this land from Ewing, making a sufficient tender of the redemption money paid by Ewing to Caruthers, together with the advance required by statute which had been made by Ewing, with interest, costs, etc. Ewing declined to permit redemption unless the whole of his debt should be paid in addition to the amount of his redemption bid. Ewing had failed to advance his redemption bid within 20 days after redemption, or at any other time, but nevertheless demanded that the whole of his debt, whether bid upon the land or not, should be paid to him. Upon Ewing's refusal to permit redemption, Cook filed his bill, stating all these facts and bringing the tender he had made into court; prayed that Ewing be compelled to submit to redemption, and that the legal title to the land of Wilson be divested out of him, and vested in the complainant.

The right, by bill in equity, to subject to sale the debtor's right of redemption, is most earnestly insisted upon by Ewing, upon the ground that this right of redemption is an interest in land, and such a one as cannot be reached by execution; and that, therefore, the chancery court has jurisdiction to subject such interest to the satisfaction of the judgment in favor of complainant. The right of a judgment debtor to redeem his land sold under execution is not an equitable right at all. It is the creature of statute, and depends on statute law, and is in no sense a right either created or regulated by principles of equity. The right of redemption given by statute, both to the judgment debtor and judgment creditors, is a legal and not an equitable right. Strictly speaking, there is no estate in the judgment debtor after sale and conveyances of his land, under judgment sale. Nothing remains to the debtor, after execution sale and sheriff's deed, save a statutory right of redemption. This right of redemption has sometimes been spoken of as an equitable right, and his interest in the lands subject to redemption as an equitable estate. This terminology springs from the supposed analogy between the statutory right of redemption and the equity of redemption of a mortgagor. But whatever may be the technical character of the interest springing from the right of redemption given to a judgment debtor whose lands have been sold under execution, it is not one which may be reached and subjected to sale by a creditor who is in condition to redeem as provided by statute. This is not an open or debatable question in this state.

Ewing was a judgment creditor of Wilson, and, as such, had a right to redeem, and within 20 days to have advanced his redemption bid to any sum within the limit of his judgment. The right of redemption he did exercise the day after he filed his bill. He had the plain, unquestioned right to have placed his whole debt on this land, at any time within 20 days, by crediting such advance bid upon the judgment he held against Wilson. This plain and most obvious course he, for reasons not clearly discernible, neglected or refused to pursue. He had undoubtedly the right to stand upon all the rights he had acquired by the filing of...