Whiting v. Butler

• Decision Date: 08 April 1874
• Citation: 29 Mich. 122
• Court: Michigan Supreme Court
• Parties: John L. Whiting and another v. Milton H. Butler

29 Mich. 122

John L. Whiting and another v. Milton H. Butler

Supreme Court of Michigan

April 8, 1874

Heard May 14, 1873 [Syllabus Material]

Error to Wayne Circuit.

Ejectment. Defendants bring error. Affirmed by an equally divided court.

Judgment affirmed, with costs.

Henry M. Cheever and C. I. Walker, for plaintiffs in error.

John J Speed and R. P. Toms, for defendant in error.

Cooley, J. Christiancy, J., Graves, Ch. J. concurred. Campbell, J. dissenting.

OPINION

Cooley, J.

This case presents important questions regarding the rights of purchasers at execution sales.

In October, 1865, Theodore J. Campau was the owner of an undivided one-ninth interest in certain lots in Detroit. On the 15th day of January, 1866, Godfrey, Dean & Co. caused an execution, issued on a judgment in their favor, rendered by the circuit court for the county of Wayne, to be levied on that interest, and a sale to be made on the 24th of March following, for the amount due on the judgment and costs. The judgment creditors became purchasers at the sale, receiving the usual sheriff's certificate, and afterwards assigned their interest therein to Milton H. Butler and F. E. Driggs. Neither the judgment debtor nor any other person redeemed from this sale, or as creditor acquired the rights of the purchasers under the same, and on June 29, 1867, the sheriff executed to Butler and Driggs the usual deed to carry the sale into effect as provided by the statute. In 1868 Driggs conveyed his interest to Butler. It is not disputed that the sheriff's sale and all the proceedings to perfect title under the same were perfectly regular and in accordance with the law. Theodore J. Campau and his co-tenants nevertheless treated the sale as ineffectual, and proceeded to have partition made of their individual interests in chancery, and a certain parcel now in controversy in this suit was set off in severalty to Daniel J. Campau, who now occupies the same by his tenant, John L. Whiting. The present suit is by Butler, who seeks to recover the undivided one-ninth part of the premises under the title derived from the sheriff's sale.

If the case presented no other facts than these the right of the plaintiff to recover would seem to be unquestionable. He acquired, in the words of the statute, "all the rights and interests that the debtor had in and to the lands so sold at the time of the levy by virtue of the execution."--Comp. L. 1871, § 4628. And not having been made a party to the proceedings in partition, he is entitled to recover as if they had never taken place.

But the defendants insisted that these proceedings were rendered ineffectual by others which were prior and paramount; and it becomes necessary to consider such prior proceedings. It appears that previous to the recovery of judgment by Godfrey, Dean & Co. one Edward A. Drury had caused execution on a judgment against Theodore J. Campau in his own favor, and rendered by the same court, to be levied upon the same premises, and a sale to be made December 28, 1865, at which he became the purchaser. No redemption from this sale was made by the judgment debtor within the year allowed by the statute for that purpose, nor did any creditor acquire the right of the purchaser within the three months following the expiration of the year; and Drury, consequently, on the 29th day of March, 1867, became entitled to the usual sheriff's deed, unless his right was lost by accepting the amount of his bid and interest as hereinafter stated.

Had this sale been duly and legally carried into effect by the execution of a deed to Drury, or to any one who, as his assignee, had become vested with his rights, it could not be denied that all rights acquired or derived under the sale to Godfrey, Dean & Co. would have been cut off and extinguished. But it was claimed by the plaintiff that until the Drury sale was perfected by deed this consequence could not follow. The assignee of Godfrey, Dean & Co. having acquired by their purchase and the assignment thereof all the rights which Theodore J. Campau had at the time their levy was made, and having procured the proper legal conveyance, neither the judgment debtor nor any one claiming, as the defendants did, under him, can resist his right to recover by showing merely that a right to obtain a paramount title has accrued to some third person, which right, however, the person entitled to it has never seen fit to assert by procuring such title. The argument is, that a suit in ejectment tries the legal title only; and that when that and that alone is in controversy, it is wholly immaterial that some third person is possessed of a paramount equitable right which he would be at liberty to convert into a legal title if he chose. When he obtains his legal title, and only then, can he enforce a right of possession; and not until then can his rights be made use of to defeat a claim to possession by another otherwise entitled.

But the defendants, on the other hand, insisted that this view must be erroneous, because after the sale on the Drury judgment nothing remained in Theodore J. Campau which could be levied upon by a junior creditor except a right to redeem; and we are told on the argument and in their brief that all that was acquired by the purchasers at the second sale was a "mere right to redeem." If this is so, then the position assumed by the defendants is impregnable; for it is conceded that neither the judgment debtor nor any person claiming under him made redemption within the time allowed by law; and we fully agree with the counsel for the defendants that this statutory right of redemption can only be exercised, as against the interests of non-consenting parties, by a strict compliance with the statutory provisions. The mere right to redeem was consequently lost on the 29th day of December, 1866, and the right of creditors to acquire the rights of the purchaser at the execution sale was lost three months later.

But is it true that Theodore J. Campau, at the time sale was made on the second execution, had in the premises a mere right to redeem? Most certainly he had something which was very much beyond and above any such mere right. He had the legal title. As owner he might sell and convey the land and deliver possession, might mortgage and lease, might receive the rents and profits, might defend his possession by legal proceedings, or even by force, and if an intruder had obtained possession, might have ejected him by all the same remedies which would have been admissible had his title been subject to no contingency or condition. Nor would these rights, extensive and valuable as they were, have been forfeited or lost by a mere failure to exercise the right to redeem. If they were, they must have been lost or forfeited to some other person than Drury, for his rights could only, under the statute, have been perfected so as to divest the legal title of the judgment debtor and enable the purchaser to demand possession and maintain a suit for its recovery, when the sheriff's sale had been carried into effect by deed. But if Drury could not insist that the legal estate of the judgment debtor had determined previous to the execution of a sheriff's deed, it is obvious that no third person could make the claim for him. He was at liberty to leave the legal title in the judgment debtor indefinitely if he saw fit. It is true that after Drury had become entitled to a sheriff's deed, Campau's title would have been a mere legal title with the whole equitable right in Drury, but for all the purposes of a possessory action the mere legal title would have been equally beneficial with any other, and as against any person except Drury, this naked legal right would have enabled Theodore J. Campau to appropriate to himself the beneficial use of the premises. To speak of his right as a mere right to redeem is consequently incorrect and misleading, for it was something very much more and greater while that right existed, and it did not terminate when the right to redeem was gone, but might continue at the will or through the inaction of another indefinitely.

Moreover, if we examine our statutes we shall find that a mere right to redeem has never been the subject of an execution sale in this State. It is true that interests which were liable to be defeated by a failure to redeem have been salable, but in every instance these have been legal titles. What we call the equity of redemption in mortgaged lands is subject to levy and sale, but this is for the very reason that we recognize the owner of that equity as legal owner of the land, and the term "equity of redemption," as applied to his interest, is well understood to be now, whatever it may have been formerly, a misnomer. Had he a mere equity or right to redeem, it would not be the mortgagor, but the mortgagee, who would be considered owner of the land, and as owner, it would be the interest of the mortgagee which could be sold on execution. This, however, has never been allowed in this State. And though other parties have had rights to redeem, distinct from any ownership of a legal title,--such as second or other subsequent mortgagees, judgment creditors with levies, mechanics with liens, etc.--it would require an express statute to subject these rights to attachment and sale on legal process, and a very great change in our practice and notions on such subjects before such a statute would be likely to be adopted.

Having thus seen what rights the judgment debtor had in the land at the time the execution of Godfrey, Dean & Co. was levied it would seem not difficult to determine what passed by the deed given to carry into effect the sale made by virtue of that execution. The statute itself determines that, when it declares that the...