Hardin v. Kelley

• Decision Date: 26 March 1906
• Docket Number: 2,198.
• Citation: 144 F. 353
• Parties: HARDIN et al. v. KELLEY et al.
• Court: U.S. Court of Appeals — Eighth Circuit

144 F. 353

HARDIN et al. v. KELLEY et al.

No. 2,198.

United States Court of Appeals, Eighth Circuit.

March 26, 1906

Chambers Kellar and Martin & Mason, for appellants.

William L. McLaughlin and Hiram T. Gilbert, for appellees.

Before VAN DEVANTER, HOOK, and ADAMS, Circuit Judges.

HOOK Circuit Judge, after stating the case as above, .

There are two separate provisions for redemption in the laws of South Dakota. In one it is provided that property sold subject to redemption may be redeemed by (1) the judgment debtor or his successor in interest, and (2) a creditor having a lien by judgment or mortgage on the property sold. Comp.Laws Dak. 1887, Sec. 5150,. When he attempted to redeem Hardin was a mere attaching creditor who had not reduced his claim to judgment, and as such he had no right of redemption under the foregoing provision. The judgment afterwards obtained by him did not relate back so as to give him a right of redemption as of the day of his attachment. Whether he had the right to redeem or not depended upon his status at the time he asserted it. He was not the judgment debtor or its successor in interest, nor did he have a judgment lien or a mortgage.

The other statutory provision authorizes one who had a lien to redeem from a superior lien upon the same property (Comp.Laws Dak. 1887, Sec. 4339), and Hardin's contention is that a purchaser at an execution sale before the passing of the sheriff's deed is a mere lien holder, and his interest in the land is a lien, and therefore an attaching creditor is given the right to redeem therefrom. It is true that the interest of a purchaser before redemption and before deed has in some cases been termed a lien by way of distinguishment from the legal title which still remains in the judgment debtor. But in its usual and ordinary signification a lien is a claim which one person has on the property of another as security for some debt or charge for the payment or satisfaction of which the property may be sold. When one purchases at an execution sale he takes a step looking to the acquisition of full title. He does not thereby become the creditor of any one, and no one is indebted to him for the money he pays to the officer making the sale. His interest should appropriately be termed an inchoate ownership which may automatically ripen into complete title without any further act on his part. Green v. Clark, 31 Cal 592; Abadie v. Lobero, 36 Cal. 390, 397; Wright v. Douglass, 2 N.Y. 373, 376; Trust Co. v. Bailey, 3 Edw.Ch. (N.Y.) 416; Smith v. Colvin, 17 Barb. (N.Y.) 157; Small v. Small, 16 S.C. 64. Contra Swain v. Loan Soc., 78 Cal. 600, 21 P. 365, 12 Am.St.Rep. 118. The Supreme Court of South Dakota has called it a 'conditional equitable estate,' also an 'equitable title.' Wood v. Conrad, 2 S.D 405, 50 N.W. 903. In California, under a similar statute, it has been termed an 'equitable estate'; the court saying that the use of the word 'lien' in connection therewith is not exact. Page v. Rogers, 31 Cal. 294.

The right of an owner to pay off and discharge all liens upon his property exists independently of statute, yet it is a familiar rule that the right is cut off and destroyed by a sale under execution or decree of a court. It is then said to have been foreclosed. The right to redeem from a sale does not exist independently of statute (Parker v Dacres, 130 U.S. 43, 9 Sup.Ct. 433, 32 L.Ed. 848), and this would seem to indicate that the interest of a purchaser is something different from a lien. We are of the opinion that, after real property has been sold on execution, an attaching creditor before judgment has no right under the South Dakota statute to redeem from the sale as from a superior lien. This...