text:
    Le Breton, executrix, and others vs. Miles and others.
    Where two natives of France entered into an ante-nuptial contract in NcwYork, relative to their future interests in property which they had at the time of tlio marriage, or which they should acquire during the coverture, which contract was made in referen c to the laws of France and to an intended residence in that country, and was by its terms to be afterwards drawn up in the due form of a marriage contract according to the French laws, but the parties after their marriage continued to reside in this slate ; H2LI, that the rights of the parties under such contract must be governed by the laws of France which were in force at the time of the consummation of the marriage.

      Where parties marry with reference to the laws of a particular state or as their intended domicil, those laws govern in the construction of a marriage contract entered into between them, so far at least as their rights of personal property arc concerned. But the remedy to secure such property and to protect the rights of the parties to the contract, must be according to the law of the country in the courts of which such remedy is sought.
    Under the French laws of community, a marriage contract by which the parties stipulate that the property which they then have, or which shall come to them by inheritance during the marriage, or independent of the marriage, shall be out of the community, and be their own property : nous seront propre.s;] does not give to the wife the separate use of her property which is excluded from the community; but the husband is entitled to the control of the same during the marriage, and the income or use of such property belongs to the community for the support of the family.
    But a marriage with an agreement for a separation of goods entitles the wife to administer and manage her property, and to receive the income thereof for her own use and benefit in the same manner as if she was a feme sole; except that she cannot alien her real estate without the consent of her husband or the sanction of the piopcr tribunal.
    Where by the contract of marriage, the property of the wife is excluded from the community, but without any agreement for a separation of goods, if the husband neglects to provide for her, or her property is endangcicd' by the insolvency of the husband; or otherwise, so as to entitle her to a decree of separation of goods by the laws of France and in the tribunals of that country, the court of chancery in this state will interfere for the protection of her interest in such property.
    April 7.
    This case came before the court upon the petition of Sophia, the wife of Abel Robert, one of' the defendants, claiming her share of the estate of her father, which was in controversy in this suit, as her separate estate free from the control of her husband, under an ante-nuptial agreement between them. The petitioner and her husband were both natives of France, but intermarried at the city of N. York, in November, 1823 ; having previous to the marriage executed a written contract in the French language relative to their future interests in the property which each then had or which should be acquired, or come to one or both of them during the marriage, in substance as follows :
    “ We the undersigned, Sophia Le Breton, widow of Francis Iiuguet, of the one part, and Abel Robert, of the other part, living in the same house, No. 74 Chambers-street, New-York, considering the relations of love and friendship which exist between us, which relations are grounded upon the mutual esteem we have for each other, after having sworn before God to take each other for husband and wife before the end of the year 1823, and in consequence of this sworn faith which promises us such happy days, desiring as far as in our power to give to each other reciprocal proofs of this love even after this short life, and considering moreover the promise we made to each other to leave the United States within the next year, and to go and reside in France, and desiring accordingly to lay the basis of a marriage contract which shall be drawn up in writing in the accustomed form, before a public officer here or in France, in order to give our agreements as hereinafter specified their full effect, and all the binding force which we intend to give them by this private instrument, we have concluded and agreed upon the following:

      Article 1st. The law-' of community is the rule under which we understand ourselves as marrying.

      Article 2d. All the property, as well moveable as immoveable, and monies, of whatever description, which belonged to us respectively previous to the signing of this present agreement, are to be out of the community. An inventory of them is to be made from the titles which shall be produced, and their value specified in the marriage contract ; until which time their value is to be ascertained by the inventory to be annexed to this present writing.

      Article 3d. All property, moveable or immoveable, or monies of whatever description, which shall come to us by inheritance during the marriage, or independent of the marriage, are equally out of the community, and are our own property, [seront egalement hors la communante1 et nous seront proprcs.]

      Article 1th. All the debts contracted before the marriage are to be paid by the one who contracted the same, out of his or her own monies.

      Article 5th. I, Sophia Le Breton, widow of Francis Huguet, desiring to give to my future husband, Abel Robert, an unequivocal proof of the love I entertain for him, I make known and declare that I give to him during his life, whether there shall be children born of our marriage or not, an annuity of three hundred dollars, lawful money of the United States : which annuity is to be charged upon the interest of my capital invested, or upon the income of my immoveable properly, at his election.

      Article 6th. I, Abel Robert, although I have not at present any disposable property, I declare nevertheless that I give to my future wife, the widow of Francis Huguet, whether there shall be children born of our marriage or not, an annuity of three hundred dollars, to be charged upon my property, or upon the interest of my capital which I may leave after my death. I declare besides, that I will give to her son, Victor Huguet, all necessary care during his infancy, and will-attend to his education and take care of his interests with all the zeal and activity of which I am capable.

      Article 1th. The above written articles of agreement are irrevocable; and we swear to observe them as religiously as if they had passed before a public officer. Done in good faith, and under our respective signatures. New-York, September 1st, 1823.”
    The question which arose between the parties relative to the construction of these marriage articles, the parties having continued to reside in this state, and the contract never having been drawn up in due form according to the French law as contemplated by them when this ante-nuptial agreement was made, was whether the wife was entitled to the whole control and income of her property, which was excluded from the community, during her coverture ; or whether the husband was entitled to the administration of the property during the marriage, and to the interest or income thereof for the support of the family. The counsel for both parties assented that the court should be at liberty to refer to the French civil code, and other legal works, for the purpose of ascertaining the French law in reference to which the contract was made. It also appeared by the papers in the case, that the husband was without property of his own, but that he and his wife lived together, and that he contributed as much as he was able to the support of the family.

      W. C. Noyes, for the petitioner.

      C. F. Grim,, for A. Robert, the husband.
   The Chancellor.

I have very little doubt that both the petitioner and her husband are acting in good faith in this case ; both intending to carry the ante-nuptial contract into full effect, but each believing that his or her construction thereoi is correct, according to the French law, in reference to which law the contract was undoubtedly made. I have, therefore, bestowed much labor upon the examination of the case, for the purpose of arriving at a correct conclusion; and to save the parties the expense of sending a commission to France to examine witnesses there as to the French law which is applicable to this contract.

So far as the rights of the parties are concerned, independent of the mere security of the property and the proper remedies in our courts to protect those rights, I have no doubt that this ante-nuptial agreement must be governed by the law of France, although it was entered into at New-York, where the marriage also took place. It appears to be a well settled principle of law, in relation to contracts regulating the rights of property consequent upon a marriage, so far at least as personal property is concerned, that if the parties marry with reference to the laws of a particular place or country, as their future domicil, the law of that place or country is to govern, as the place where the contract is to be carried into full effect. And this must certainly be the correct rule where the marriage contract in terms refers to the intended domicil of the parties as the place or country by whose laws their rights under the marriage contract, in reference to property, are to be determined. Here the parties are not only natives of France, but they state in their ante-nuptial contract, as one of the reasons for making the same, that they have agreed to leave the United States and go to France to reside; and they then make a contract in terms which clearly indicate their intention to be governed by the French law, as it then was, not only as to the property which they respectively possessed at the time of the marriage, but also as to future acquisitions. By the first article of their agreement they declare that they intend to marry under the law or legal rule of community. The contract must, therefore, be construed in reference to that rule as it existed in the law of France in 1823, when the marriage took place. By a reference to the French civil code, it will be seen that community in France is either legal or conventional; and that in default of special stipulations which derogate from the law of community, or modify it, the legal community and the various rules established in respect to it form the common law of France. (Civil Code, art. 1393.) These rules are embraced in the articles of the civil code from 1400 to 1496 inclusive ; and apply to the contract under consideration, except so far as the legal community has been modified by the stipulations of the parties. One of those rules is, that the husband alone administers the property of the community. (Art. 1421.) And another is, that the husband has the management of all the personal goods of the wife ; (Art. 1428) which term personal there includes immoveables, or real estate, as well as moveables. He is also responsible for all waste which such property may sustain by the neglect of conservatory acts for its preservation. The code expressly declares that conventional community remains subject to the rules of legal community, in all cases where those rules have not been superseded, explicitly or impliedly, by the contract. (Art. 1528.) The code also, in terms, authorizes the parties, in their marriage contract, to stipulate that they will be separate in goods ; the effect of which agreement is to give to the wife the entire management and control of her property, both real and personal, and the enjoyment of the income thereof, in the same manner as if she was a feme sole. But she cannot make any agreement which will authorize her to alienate her immoveable property, during the marriage, without the concurrence of the husband ; or, in case of his refusal, by the authority of the appropriate tribunal. (Art. 1536, 1538.) The 223d article of the code provides that every general authority, although stipulated by the contract of marriage, is invalid, except as respects the administration of the property of the wife. But it would seem, from the last clause of the 1538th article, that this restriction was not intended to apply to the alienation of the moveables of the wife, under the clause of separation of goods. Whether a general authority to that effect, however, should not be contained in the marriage settlement, in order to take the case out of the operation of the 217th article, is a question which it is not necessary here to determine. For I have satisfied myself, from a careful examination of the ante-nuptial contract, in this case, with the various provisions of the French civil code, that it is not an agreement that the parties should be separate in goods ; so as to give to the wife even the administration of her property which is excluded from the community.

There appears to be a well settled distinction, preserved in the French law, between a mere exclusion of the proper or personal goods of the wife from the community, and a stipulation that the parties shall be separated in their goods. The first case is provided for in the six articles of the civil code which precede the provisions relative to the rights of parties who marry under a stipulation that they shall be separate in goods. Article 1530 declares that marrying without community does not confer lipon the wife a right to administer her property, nor to enjoy the fruits thereof; but that such fruits are deemed to have been given to the husband to sustain the expenses of the marriage. And the next article also declares that, in respect to such property, the husband retains the administration of the moveables and immoveables of the wife, and of consequence, the right to the enjoyment of all the moveable property which she brings as dowry or which falls to her during the marriage ; subject to the restitution thereof, which he is bound to make upon the dissolution of the marriage, or upon a decree of separation of goods pronounced by the appropriate tribunal. (See also Durant on Cours De Droit Francaise, Lib. 3, Tit. 5, No. 310.) Masse, in his perfect notary, in treating of the incapacities of married women in a state of community, refers to these two articles of the civil code, in connection with the 1428th, for the purpose of showing that the incapacity of the wife is the same as to the administration of her goods which are excluded from the community, as it is in respect to those which belong to the community. And he adds, “ The income or fruits of the goods propres of the wife commune fall into the community of which the husband is master, and the income of the sole goods [biens personnels] of the wife non commune belong to the husband, to support the expenses of the marriage state ; and it is for these reasons that the one as well as the other is deprived of the administration of her goods.'' (Masse’s Parfait Notarie, vol. 1, p. 128.) Again, he says : “ Wives, on the contrary, who are married not with a simple exclusion of community, but with separation of goods, have the entire administration of their moveables and immoveables, and the free enjoyment of their incomes. (See also 3 Bellot’s Cont. of Marriage, 359, § 2. Biret’s Cont. of Marriage, 161. 1 Burge’s Col. & For. Law, 407.) This distinction, between a single exclusion of the goods which belong personally to the wife, from the community, and a clause in the marriage contract declaring that the husband and wife shall be separated in their goods, was also fully recognized in the discussions which took place in. the legislative body upon the adoption of this part of the civil code of France. In the speech of M. Simeon, in the session of that body of the 10th of February, 1803, he says : As people when they marry, place themselves under the law of community by the mere act of marriage, and yet can depart from the legal community by restraining or enlarging it by such stipulations as they wish, they can also exclude that community which is of common right but which nevertheless is not absolutely required. The exclusion of the community alone does not establish the rule of dower ; which rule must be expressly assumed. Neither does it give to the wife the administration of her property : for the rights of the husband to that administration are independent of the community. She cannot, therefore, alienate her immoveables without his consent, or by the authorization of the proper tribunal of justice. He will receive all the moveables which she brings into her marriage portion, or which accrue to her during the marriage ; subject to the restitution thereof for which he is liable upon the dissolution of the marriage. And as he enjoys the property, he must pay or satisfy all the charges thereon which are payable by those who have the use of such property. The parties have not only the power to exclude the community, but to marry with a clause or stipulation for a separation of goods. That clause has a greater effect than the exclusion of the community ; it leaves to the wife the entire administration of her goods, and the free enjoyment of her income. In such case, the husband has merely the power which results from the marriage only ; which always prevents the wife from alienating without his authorization, or, upon his refusal, without that of the court. (Seethe Baron Locre’s Legislation of France, Vol. 13, p. 468. See also 4 Guyot’s Rep. de Jurisp. art. Communaute, p. 210; 16 Idem, art. Separation De Biens; Poth. Traite de la Communaute, pt. 1, ch. 3, art. 8, § 3, 4; 2 Battur’s Community of Goods, pt. 2, ch. 11, § 2, p. 189; 2 Toullier’s Civ. Law of France, p. 20.)

The counsel for the petitioner supposes that the language of the contract between these parties, which not only declares that the goods of each shall be out of the community but shall be their own, is equivalent to a clause of separation of goods. In this, however, he is clearly wrong. The word propre, as used in this clause of the contract, was probably only intended by the parties to declare a little more explicitly that the goods acquired by either by succession during the marriage, or in any other way entirelj independent of the rights which the marriage gave to them jointly, should equally with the property possessed before marriage be excluded from the community; so as to be the personal goods of each. Thus, Masse says, (vol. 1, p. 173,) “the goods of the wife, who is commune, that is, who marries under the law of community, as in this case, are either propres or conquets. The goods propres are those which belong to her personally, and of which the fruits and revenues only enter into the community ; the conquets are all those of which the principal or capital, as well as the fruits and income which they produce, enter the community. The fruits and income of the propres, as well of the husband as of the wife, are also called conquets ; because they form a portion of the goods of the community.” lies propria est qua communis non est. (See 14 Guyot’s Repert. art. Propre; 3 John. Ch. Rep. 212; 1 Burge’s Col. & Foreign Law, 347.) The conclusion therefore at which I have arrived, in this case, is, that the husband did not intend by this contract to relinquish his marital rights over the property of the wife, which was excluded from the community ; and that he is clearly entitled to the interest or income of the fund in court, for the support of himself and his wife and family, so long as it is properly applied for that purpose. And the marriage contract must be carried into effect, as far as it can be done consistently with our laws, so as to give her the full benefit of the principal of the fund at the dissolution of the community; subject to the annuity which is secured to him out of the same in case he survives his wife.

The French law has not left the wife entirely destitute of support from the income of her own property, even where she has not secured to herself the administration and the enjoyment of the income by a clause of separation of goods in the marriage contract. For she may apply to the proper tribunal for a decree of separation of goods, so as to give her the administration and income of her Mens propres; not only for the support of herself and family, but also for the protection of the fund, where her dowry is in peril. Or where the situation of the husband’s affairs gives room to fear that his property will not be sufficient to satisfy the prior claim and demands of the wife. (Civ. Code, art. 1443.) Such a suit cannot, indeed, be maintained in our courts, as the laws of this state do not permit a feme covert to hold separate property free from the control of her husband, except through the medium of a trustee. But this court, in the exercise of its equitable powers, may afford her such relief as the nature of the case requires for the protection of her property, where the husband is himself the trustee for her, as in this case, under this ante-nuptial agreement.

There is nothing in the fact that the husband has lost a part of the property of his wife by an investment thereof in the Dry Dock Bank, to show that he is incompetent to manage the property with ordinary prudence and discretion. It was such a loss as the most judicious men are constantly exposed to, who invest their funds in the stocks of moneyed corporations ; and to which the property of his wife was equally exposed while it remained invested in the stocks of insurance companies. If the property of the husband was such, therefore, as to afford a reasonable assurance to the wife that the loss would be made good to her in case of his death, this misfortune in losing that portion of her dowry, would be no sufficient reason for withholding from him the full possession of the fund, which belongs to her in this suit as a part of her father’s estate. It is evident, however, from his own statement, that he has very little property of his own, and that he has not the means of making good this loss; for which he is liable according to the French law. Under such circumstances, it would be a departure from the ordinary course of this court to permit the fund, which is now within its power, to go into his hands without security. If the parties, therefore, cannot agree upon a mode of investing the same which will be more for the interest of both, it must be invested by the receiver on bond and mortgage, or in public stocks, in the name of the assistant register. And the interest or income thereof must be paid over to the husband, for the support of himself and his family, until the further order of this court; with liberty to the wife to apply for further directions if the income is not properly applied for that purpose. I trust, however, that after this decision upon the respective rights of the husband and wife under this marriage settlement, in the construction of which instrument there was certainly room for an honest difference of opinion among those who were not much acquainted with the laws of France, to which their ante-nuptial contract related, they will be able with the advice and assistance of friends to make an amicable arrangement as to the investment of this fund; and for the application of the income thereof for their joint benefit during the existence of the community, so as to save the expense of any farther application to the court on the subject.

The wife has such a separate interest in the subject of this suit as entitles her to appear and protect her rights therein by a separate solicitor and counsel, if she thinks proper. But even in reference to that, as the husband and wife have a common interest in recovering the full share of the wife in her paternal inheritance, I would suggest to both the expediency of employing the same counsel to protect their rights, in any future litigation which may be necessary; so that the property in which they are both interested may not be subjected to any unnecessary and useless expense.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Cassilear & Field vs. Simons and others.
    A defendant in a creditor’s bill is not in contempt ior neglecting to deliver over property to the receiver, where such property is claimed to be in the possession of and to belong to a third person, unless the master has decided that such property belongs to and is under the control of the defendant.
    Where the defendant is directed to assign and deliver over his property to a receiver, under the direction of a master, if the complainant wishes to have an actual delivery of property which he supposes to belong to the defendant, but which the latter insists belongs to another person, he must apply to the master to decide what property is under the defendant’s control, and to make an order directing the defendant to deliver over the property which shall be decided to be under his control; before he can bring such defendant into contempt for disobedience of the order of the court.
    If goods of the judgment debtor have been fraudulently assigned, and the fraudulent assignee is made a party to the suit in chancery against such debtor, and is irresponsible, the proper course, where such assignee claims to be in possession of the property, is to have the receivership extended to him; and to obtain an order that he, as well as the judgment debtor, deliver over the property in controversy to the receiver.
    April 7.
    This was an appeal from an order of the vice chancellor of the first circuit denying an application for an attachment against the defendant Vaughan for refusing to deliver over a store of goods to the receiver ; or for an order directing him to deliver up the property to the receiver.

      C. Bushnell, for appellants.

      B. G. Hitchings, for respondents.
   The Chancellor.

The master not having decided that the defendant had such a possession and control of the property as to entitle the receiver to a delivery thereof without the consent of Baucher, who claims to be the owner in possession, the defendant Vaughan was not in contempt. Where it is referred to a master to appoint a receiver, and the defendant is directed to assign and deliver over his property on oath, under the direction of the master, it is the duty of the party who wishes to have an actual delivery of the property, in addition to the legal assignment thereof, to call upon the master to decide the question as to what property is under the defendant’s power and control, and to obtain from the master an order directing the defendant to deliver over the property thus designated by the master ; before the complainant can bring such defendant into contempt for disobeying the order of the court. Especially must the complainant do so where the defendant alleges that the possession is in another person.

In this case that course should have been adopted, so as to give the defendant Vaughan an opportunity to produce witnesses, before the master, for the purpose of showing that the store of goods was not in his possession or under his legal control, if the fact was so ; and also to enable him to appeal to the court from the master’s decision if it was wrong. Or, what would have been a more proper application in the present case, if the alleged assignee of the goods was insolvent or irresponsible, and the assignment was fraudulent, the complainants should have applied to extend the receivership to him, and for an order that-he should deliver over the goods in the store to the receiver. Upon the application which was made to the vice chancellor, Vaughan was unquestionably authorized to use affidavits to show he was not in contempt in not delivering over this property; which he had no right to deliver without the consent of Baucher.

The vice chancellor certainly could not, in the face of these affidavits, pronounce this to be such a clear case of fraud as to entitle the complainants to extend the receivership to Baucher, upon the ex parte examination of Vaughan to which Baucher was nota party; and where the property was not in jeopardy from the irresponsibility of the one who swears he is the legal owner, and in whose actual custody it now is. Whether Baucher was intended to be made a party to the petition does not distinctly appear. For the notice of presenting it, on the copy with which I am furnished, is not directed to any body; and there is no affidavit showing upon whom that notice was served. However that may have been, I am satisfied the decision of the vice chancellor was right both as to Baucher and Vaughan. The order appealed from must therefore be affirmed with costs.


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    Evertson & Evertson vs. Ogden, executor, &c.
    Where a, bill was filed against a defendant as executrix of her deceased husband, to reach property which she had received as such executrix, but which in equity belonged to the complainanfs, and she died after a decree had been made in their fevor; Held, that the surviving executor of the husband, but who was not made a party to the original suit, could only be brought before the court by an original bill in the nature of a bill of revivor and supplement; and that the filing of a mere hill of revivor against him was improper.
    Where a bill of revivor filed against a defendant shows no title in the complainant to revive, as against him, he should demur to^tho bill instead of pleading thereto.
    A plea cannot, in the court of chancery, be substituted in place of a demurrer.
    April 7.
    This was a plea to a bill of revivor. The original bill was against Eliza Evertson, as executrix of Nicholas Evertson deceased, to reach certain property which she had received as such executrix, hut without right, and which in equity belonged to the complainants. And a decree was thereupon made for an account, to ascertain what had been received by her on the bonds and mortgages in which the complainants had an interest, and what still remained due thereon. In this situation of the suit she died, and this bill was thereupon filed against D. B. Ogden, the surviving executor of N. Evertson, hut who was not a party to the original suit, to revive the suit against him. To the bill of revivor thus filed the defendant pleaded that he had no assets, and had not any at the time of the transactions mentioned in the bill ; that he was informed and believed that Eliza Evertson, the acting executrix, distributed all the assets,in her lifetime, among the children and legatees of 1ST. Evertson ; and that the defendant in this bill of revivor had not acted as executor, for a long period before the transactions mentioned in the bill, except as to some formal matters, and that he was wholly ignorant of the matters stated in the bill.

      H. W. Warner, for the complainants.

      T. R. Green, for the defendant.
   The Chancellor.

I am satisfied from the case as made by the bill itself, that this is not a case for a simple bill of revivor, against one of the original executors of N. Evertson who was not made a party to the former suit. If the estate of N. Evertson must be represented in these further proceedings, (as it probably must, to reach that part of the mortgages which had not been collected at the time of the decree,) the surviving executor upon whom the interest assigned to her has devolved, if it remained in her hands when she died, must be brought before the court by an original bill in the nature of a bill of revivor and supplement. And as Mrs. Evertson had also made herself personally liable for the funds belonging to the complainants, which she received, it may be proper also to make her personal representatives parties. And if the suggestion in the plea is correct, That she had paid over the whole fund to the children and distributees of N. Evertson before her death, I am inclined to think it would be proper to make them parties also, to compel them to refund. Upon these questions, however, I express no definite opinion.

But the defendant has mistaken his defence. As the bill showed no title to revive against him, in this form, his proper course was to demur. And in this court a plea cannot be substituted in place of a demurrer. (Billing v. Flight, 1 Mad. Rep. 230. Cown v. Price, 1 Bibb’s Rep. 175. Story’s Eq. Pl. 504, § 660.) Here no new fact is brought forward by the plea which in itself constitutes a bar to the revivor. The plea is also informal in setting out several distinct facts, not tending to the same point. It must therefore be overruled ; but with leave to the defendant to demur, unless the complainants think proper to amend their bill by making it an original bill in the nature of a bill of revivor and supplement, and bringing all proper parties before the court as they shall be advised. And they are to have sixty days, after the entry of this order, to amend if they think proper to do so.

The costs follow of course upon the overruling of the plea.


author: Moseley, V. C.

text:
    Patty vs. Pease & Seymour.
    Where the owner of property subject to the lien of a mortgage conveyed a part of the premises to M., and afterwards received the purchase money, and subsequent to that conveyance sold the residue of the premises for the full value thereof to H., under an agreement that the purchase money should all be applied upon the mortgage, and that the premises thus sold to H. should be released from the lion of the mortgage, and the mortgagee released the same accordingly; Held, that such release did not discharge the part of the premises first conveyed from the lien for the residue of the money due upon the mortgage.
    The rule of charging different parcels of land, subject to a common incumbrance, in the inverse order of their alienation, is a mere rule of equity; and as a release to a subsequent purchaser of one parcel of the land is not a technical discharge of the lands previously conveyed from the lien of the incumbrance, it is not an equitable release except in those cases where upon the principles of natural justice and equity it ought to thus operate against the releasor.
    Where a mortgagee whose mortgage is a lien upon two parcels of land, subsequently conveyed by the mortgagor to different purchasers, releases the piece last convoyed from the lien of his mortgage, without any notice, either actual or constructive, that the other parcel had been previously sold by the mortgagor, he does not thereby, discharge the parcel not released.
    April 7.
    This was an appeal from a decree of the vice chancellor of the seventh circuit. And the facts so far as they are necessary to the understanding of the principles of law decided in the case, are stated in the following- opinion of the vice chancellor, delivered by him at the time of making the decree appealed from :
   Moseley, V. C.

The bill in this cause was filed to foreclose a mortgage, under the following circumstances : On the 10th December, 1810, Erastus Pease executed the mortgage described in the bill to John Patty and Robert Patty, upon a village lot in the village of Auburn, to secure the payment of $755,75, according to the condition of a bond of even date therewith, and the interest. On the 14th day of March, 1827, Pease the mortgagor, sold a portion of the premises covered by the mortgage, to William Maxwell, who afterwards paid the whole consideration for the sale of this portion to Pease. On the 18th day of March, 1827, Pease sold the residue of the said premises to Palmer Holley, with whom an arrangement was made, in virtue of which Holley paid the whole of the consideration for this purchase to Patty ; and it was applied and endorsed upon the bond and mortgage. Patty at that time executed an instrument declaring that portion of the premises sold by Pease to Holley released and discharged from the lien created by .the mortgage from Pease to him. On the 31st day of July, 1830, Maxwell sold and conveyed that portion of the lot which was deeded to him by Pease, to James S. Seymour, the defendant in this suit, who still owns and is in possession of the same. A balance is yet claimed to be due upon the bond and mortgage. Robert Patty died in 1832, and the bill is filed by John Patty as the survivor. Pease has became insolvent.

Upon these facts, the complainant insists that he has a right to enforce the lien, originally created by the mortgage, upon that portion of the premises now held by Seymour, though it] was conveyed by the mortgagor first in the order of time, to Maxwell. The leading principle applicable to the rights between those parties undoubtedly is, that when lands incumbered by a mortgage or judgment against the owner are subdivided and conveyed to different persons at different periods of time, that portion, which is conveyed last by the incumbrancer is to be first called upon to contribute for its full value towards satisfying the incumbrance ; and thus each portion is thus.to bear its proportion of the burden in the reverse order of the time of its alienation. This principle is not now to be questioned. (Gouvenour v. Lynch, 2 Paige’s Rep. 300.) It has been frequently asserted in our own courts and is deemed a cherished principle of the English chancery. (5 John. Ch. Rep. 33. 9 Cowen, 403.) When Maxwell purchased of Pease the west half of the lot, on the 14th March, 1827, he had undoubtedly the right to rely upon the rule of law towards protection from incumbrance; and the only serious question in the case is, whether the transaction between Pease, Holley and Patty, on the 18th of March, only two days after, if it should be sanctioned, impeaches that rule.

It may be difficult to illustrate or define the rule in any language more explicit than that in which it is declared. But its meaning would have been understood, and no doubt was so between the parties in their application of it when they learned that Pease by his deed to Maxwell of the 14th December transferred the whole, or so much of the lien created by his mortgage, to the other portion of the lot as to require its whole value to be applied in payment of the mortgage debt. Admonished by this rule, Holley was bound to see that upon the receipt of a deed from Pease on the 16th of the same month, for the other portion of the lot, he gave the full value of it; and that all the purchase money was applied upon the bond from Pease to Patty. If this was done, Holley might well have supposed that good faith had been maintained towards Maxwell. And this is believed to be the object and ' extent of the rule. If we carry our views back to the period of the transaction, it will be sufficient to see what now should have been advised to be done by the parties. But it is contended by the counsel for the defendant Seymour, that nothing short of a judicial sale of the second half of the lot, and an application of its proceeds under the direction of a decree, could satisfy the rule, I cannot admit the force of the objection. Natural justice was all that was required; and it purely can only be necessary to resort to a court of competent jurisdiction to enforce it when withheld. It strikes me, therefore, that the principle of preference to the first purchase is preserved when the full value of the second sale is applied to the benefit of the first purchaser. Hence it is resolved into a question of fact, whether on the 16th of March, 1827, eight hundred dollars was the full value of that part of the premises conveyed to Holley. The release of that portion of the premises from Patty to Holley, discharging the mortgage, is dated on the 21st of March, five days after the date of the deed from Pease to Holley, and the circumstance, it is contended, shows that the release had no connection with the deed. The facts are so closely connected however in principle, and nearly related in time, as to evince that they were all dependant and constituted but one transaction. And Palmer Holley testified that the release was agreed upon before he could raise the money by a new mortgage to pay the consideration ; and that it was considered all one transaction. Besides, it is not perceived to be of any importance if Pease was not a party to the release, he must have been a party to the agreement in the appropriation of the avails of the sale. The purpose to be effected was palpable. Pease was called upon for payment, and he testified that he sold to raise money to pay the Pattys. Holley was the purchaser, and principally interested in the application of the purchase money. It behooved him to see that the release was obtained. It seems to have been quite immaterial whether the release was obtained or not; for when the avails of the sale of that part of the lot were applied on the mortgage, it had discharged its obligation to both parties. In respect to the value of the premises, I consider that the estimate must be founded upon their value at the time of alienation. Any other rule would lead to much confusion, and in its application might, from subsequent fortuitous circumstances, defeat the ends of justice. There can be found no rule which would follow the premises last sold into their present altered and vastly enhanced condition in value, which would not also make a demand upon the premises possessed by Seymour. And in which case the rule of construction must be abandoned, and its substitute would render it quite uncertain upon which half of the lot the burden would fall. It is therefore not only necessary to estimate their value at the time of alienation ¡ but in judging of the testimony upon that point, to have due regard to impressions which may natually be made upon the minds of witnesses from extraordinary uses of real estate in consequence of unforeseen improvements.

On recurring to the testimony and comparing the estimate made by the witnesses of the value of that portion of the lot sold by Pease to Holley, on the 16th March, 1837, I cannot resist the conclusion that it was not only a fair sale and at its full value, but that it also may be deemed to have been a beneficial one at that period for the interest of the first purchaser j who stood in the character of a surety for the mortgage debt, by reason of the application of the proceeds of the sale upon that debt without any expense to him in effecting it. It was in all probability as much as Maxwell himself could at that time have made out of it if he had then the control of it. The manner in which the negotiation for its purchase was commenced and consummated in the purchase by Holley of Pease does not appear to have been unfair. Maxwell if he had been consulted would not have possessed the right to require a sale upon credit at an enhanced price. The creditor himself holding the incumbrance required payment - and after a diligent canvass of the subject a gale was agreed upon at the price of eight hundred dollars, with the understanding that the proceeds should be applied upon the bond and mortgage. Both parties went to Patty and saw the application of the money.

If I have not taken an erroneous view of the weight of the testimony, the equities between the parties in this cause do not require that the sale from Pease to Holley should be disturbed. It appears to have been made in good faith between the parties to it, for a fair cash value. And, what is unusual, the purchase money was agreed to be paid upon the bond and mortgage of Pease; so as to extinguish as far as might be the lien of the mortgage on the whole lot.

John Porter, for the appellant.

The complainant should not be permitted to collect his mortgage debt out of the premises sold to Maxwell, and now held by Seymour. Maxwell purchased and took his title and paid the purchase money, without reserving any part thereof to be applied on the mortgage, leaving the remainder of the mortgaged premises still held by Pease the mortgagor. (9 Cowen, 403. 5 John. Ch. Rep. 235, 259, 240. 19 John. Rep. 486, 493. 4 John. Ch. Rep. 132.) The complainant knew of the sale to Maxwell beforé he gave the release to Holley. The remainder of the mortgaged premises held by Pease, after the sale to Maxwell, was of sufficient value to have discharged the mortgage, and has ever-since remained so; and if not, Maxwell had such an equitable interest in the matter that he should have had notice, by suit or otherwise, before any steps could be taken that might cast the burden of the mortgage, or any part of it, upon the land he purchased. Otherwise the release would operate as a fraud upon Seymour. For when he bought of Maxwell, the premises released were of far greater value than the amount of the mortgage debt; and he not having any knowledge of the release, had good reason to believe that his lot could never be made liable for the mortgage debt or any part of it. Maxwell by his purchase stood in the place of a surety for the payment of the mortgage debt; and the Pattys could do no act to discharge the security they held for the debt, to the prejudice of the rights of Maxwell, without releasing by the same act their lien upon the land. (4 John. Ch. Rep. 130. 2 Paige, 497. 3 Id. 649, 650, 652.) The debt could not without notice to the prior purchaser make a private sale of the remainder of the mortgaged premises, and pay the purchase money to the mortgagee and obtain a release of the mortgage lien, without discharging the lien of the mortgage on the land sold to Maxwell.

I find no motive springing from natural justice to induce such interference; but on the contrary, a strong argument derived from the necessity of frequent alienations of real estate in a highly commercial community, and that the embarrassments should be as few as justice to those having prior equities will permit.

I have therefore come to the conclusion that the balance which upon reference to a master shall be found due upon the bond of Erastus Pease to John Patty and Robert Patty, and mentioned in the pleadings, remains a charge upon that portion of the premises mentioned in the pleadings, and which were conveyed by Maxwell to Seymour, on the 14th of March, 1827; and that upon the non-payment of such balance and the costs of this suit, within thirty days after the same shall have been reported to this court and the report confirmed, the premises be sold under the direction of a master in this court.

From this decision of the vice chancellor, the defendant Seymour appealed to the chancellor.

P. Bronson, for the respondents.

The proof shows that $800, the price paid by Holley for the lot sold to him, was the full cash value of the lot at the time of the sale, and all that it could have been sold for. The release of the Holley lot by the complainant long after the mortgage was due, and on the application of the whole consideration money on the mortgage, is no bar to a claim on the lot held by Seymour, for the balance. The present value of the Holley lot, or its value at any time since the sale, is not material, and under the circumstance of the lease the evidence thereof should be excluded. (2 Paige, 300. 1 Id. 228.) The defendant Seymour had constructive if not actual notice of the mortgage. (1 John. Ch. Rep. 425. 1 Id. 447. 5 Id. 235. 9 Cowen, 403.)

The Chancellor. This is an appeal by the defendants from a decree of the vice chancellor of the seventh circuit for the foreclosure of a mortgage. And the only question is, whether the vice chancellor has correctly applied the principle to the facts of this case, that where the owner of lands subject to a charge sells them at different times in parcels the several parcels are to be charged in the inverse order of their alienation. (See Aicken v. Machlin, 1 Drury & Walsh’s Rep. 621. James v. Hubbardy 1 Paige’s R. 228.) The land now owned by Seymour was first sold and conveyed, and a few days afterwards the residue of the mortgaged premises was sold to Holley for $800. Holley paid the whole purchase money, directly to the mortgagee, and took a release of his land from the lien of the mortgage. And the question is whether the complainant, by the execution of that release, discharged the lands previously conveyed to Maxwell from the lien of his mortgage 1

This rule of charging the lands in the inverse order of their alienation is a mere rule of equity. The release to a subsequent purchaser, therefore, is not a technical discharge of the lands previously conveyed from the lien of the incumbrance. Neither is it an equitable release or discharge, unless upon the principles of natural equity and justice it ought thus to operate against the party making the release to the subsequent grantee. And as I am satisfied from the evidence that the vice chancellor arrived at the correct conclusion as to the actual cash value of the land conveyed to Holley at the time the mortgagee executed the release to him, I think he has applied the principle of the rule correctly to the facts of this case. For the whole value of the lands which remained unsold after Maxwell purchased having been actually applied to the reduction of the amount due on the mortgage, he was not prejudiced by the sale of those lands to Holley under the stipulation that they should be released from the lien of the mortgage. And it was carelessness that he did not see that his own lot was discharged from the mortgage also, before he paid over the purchase money to Pease; which purchase money does not appear to have been paid down when the deed to him was given, on the 14th of March, or to have been applied on the mortgage.

Again; it does not appear that the deed to Maxwell was recorded, or that he was in possession of the premises conveyed to him, or that the complainant had any notice that this part of the premises did not still belong to the mortgagor, at the time he received the money and released the premises conveyed to Holley. And without no- : tice of the prior conveyance, either actual or constructive, the mortgagee would not lose his lien by releasing the land of the subsequent purchaser. (Guion v. Knapp, 6 Paige’s Rep. 35.)

The decision of the vice chancellor was therefore right, and the decree appealed from must be affirmed with costs.


author: Willard, V. C.

text:
    Van Horne vs. McLaren.
    The redemption, by a junior judgment creditor, of lands sold on execution, under the provisions of the revised statutes, is not a satisfaction of his judgment, either at law or in equity; although the premises to which he acquires title by such redemption are worth more than the amount paid by him to redeem the same from the original purchaser at the sheriff’s sale.
    April 21.
    This was an appeal from a decree of the vice chancellor of the fourth circuit. The defendant in July, 1831, recovered a judgment in the supreme court against the complainant and J. B. Matthews, for $475,65, damages and costs, and issued an execution thereon, which was returned unsatisfied. He thereupon filed a creditor’s bill against the defendants in that judgment, to obtain satisfaction of his debt out of their equitable assets and choses in action. The complainant subsequently filed his bill in this cause, alleging that his real estate had been sold under executions upon senior judgments, for $720, in May, 1834, and that the defendant in the present suit, in August, 1835, by virtue of his junior judgment against the complainant and Matthews, redeemed the real estate thus sold, and took a conveyance thereof from the sheriff; which real estate, as the complainant alleged, was worth $800 more than the redemption. money paid by the defendant. The complainant therefore prayed that the defendant might be restrained from further proceeding in the suit upon the creditor’s bill to collect his judgment; and that he might be decreed to account for and pay to him the surplus of the value of the real estate redeemed ; after deducting the amount of the redemption money, and of his judgment and costs.
    The defendant, by his answer, admitted the facts stated in the bill, except as to the value of the premises redeemed by him, which he alleged were not worth more than $1000 or $1100. He also stated in his answer, that he had offered to the complainant, in writing, to re-convey the premises to him upon being paid the redemption money and interest, together with" his own judgment, and the costs; which offer the complainant declined. He also made the same offer in his answer, although he insisted that he was not bound to account for the value of the estate redeemed beyond the amount of the redemption money.
    The cause was heard upon pleadings and proofs before the vice chancellor; who decided and decreed that the defendant, as a redeeming judgment creditor, was not liable to account for the value of the lands redeemed by him; and that such redemption was neither a legal nor an equitable satisfaction of the judgment by virtue of which his redemption was made. But inasmuch as the defendant in his answer had offered to re-convey upon the terms therein specified, the decree allowed the complainant to accept of the offer, upon payment of the costs of this suit; and that if he did not elect to do so, and to pay the costs within thirty days, then that his bill be dismissed with costs. From this decision the complainant appealed.
   The following opinion was delivered by the vice chancellor, when the case was before him :

Willard, V. C.

The only question in this case is as to the effect of the redemption by the defendant upon the judgment in his favor, against the complainant and others, under which it took place. The complainant insists that it is an equitable satisfaction and extinguishment of the judgment. This right of redemption was first given by the act of 1820, (Laws of 1820, p. 167,) and was improved at the revision of 1829. It extends to one year from the sale, in favor of the defendant in the execution whose lands were sold, his devisee, grantee or heir at law, and upon such redemption being made by the person so entitled to redeem, the sale of the premises is deemed null and void. (2 R. S. 371, §46, 49.) But in case either of the above class of persons omit to redeem the premises so sold as aforesaid, within the year, then the interest vested in the purchase by such sale may be acquired within three months after the expiration of such year by any creditor of the person against whom such execution issued, having a decree in chancery or a judgment at law, rendered at any time before the expiration of fifteen months from the time of such sale, and which shall be a lien and charge upon the premises sold, by paying the sum of money which was paid on the sale of such premises, together with interest thereon at the rate of 7 per cent a year from the time of such sale. And the creditor thus redeeming, acquires all the rights of the original purchaser, subject to be defeated in the manner thereinafter mentioned. The 55th and 56th sections point out how this right may be defeated. And the mode adopted for this purpose is by permitting this right of the original purchaser thus acquired by the first redeeming judgment creditor to be obtained by another creditor upon the following conditions : 1st. By reimbursing to such first creditor the sum paid by him to acquire his title, with seven per cent interest from the time of payment to the time of such reimbursement. 2d. If the judgment by virtue of which the first creditor acquired the title of the original purchaser, be prior to the judgment of such second creditor, then the second creditor must also pay to the first creditor the amount due on his judgment. 3d. But if such judgment of the first creditor at the time of his acquiring the title of the original purchaser, shall have ceased to be a lien as against such second creditor, it shall not be necessary to pay the amount thereof. The same proceeding may be had in favor of any third or other creditor. The conveyance, after the expiration of the fifteen months, is given by the sheriff to the purchaser or redeeming creditor, as the case may be ; and he thus becomes vested with the title of the original judgment debtor.

The foregoing are all the legislative proceedings on this part of the subject. If the judgment of the creditor who first redeems must be deemed to be satisfied by this act of redemption, it would seem unjust in the legislature to permit another judgment creditor to redeem the premises from him without paying the amount of the judgment thus satisfied by the redemption, as well as to reimburse him the sum paid to acquire the title of the first purchaser. This he is allowed to do by the statute, unless the judgment under which he seeks to redeem is younger than that of the creditor from whom he redeems. Suppose three judgments, standing in the order of priority, Nos. 1, 2, 3 ; a sale takes place under No. 1, and the owner of No. 3, at the end of fifteen months, redeems by reimbursing the purchaser his bid and interest. The law then vests in him the interest in the land sold which the original purchaser had acquired ; and yet the next man, No. 2, may redeem from him, by simply refunding the advance which No. 3 had made, without paying any part of the judgment No. 3. If No. 3 was once satisfied by the redemption, it must, on principle, continue satisfied forever.

Again; suppose No. 2 had not redeemed from No. 3, and the owner of the latter had received a deed from the sheriff, in pursuance of the sale on the execution issued on No. 1, if judgment No. 3 thus becomes satisfied, it can never afterwards be used either as an instrument under which to redeem or otherwise. A satisfied judgment cannot be said to have a lien on the defendant’s land ; and under no other can a redemption be made. But the supreme court held in Ex parte Peru Iron Comp. (7 Cowen, 540,) that though a judgment creditor has once redeemed and taken a title, it is not a satisfaction; and he may redeem again by virtue of the same judgment. It could never have been the intention of the legislature to make the act of redemption operate so to enlarge the bid of the first purchaser that it would embrace also the whole amount of the judgment under which the redemption was made. If such were the law, no prudent creditor would redeem unless the premises sold were worth as much more than the amount bid by the first purchaser as the whole amount due on the judgment of the redeeming creditor. If by redeeming he must be deemed to have bid the whole amount of his own judgment, in addition to the amount due the first purchaser, and thus to have satisfied the whole judgment, it is obvious that a creditor whose judgment is large could rarely venture to redeem. There is in general sufficient competition at public sales to prevent any great sacrifice. If unfortunately the premises are struck off at a sum much below their value, the debtor has a year to redeem. If unable to do so in person, he may convey to a friend, who can, as grantee or owner, redeem within the year, and thus defeat a ruinous speculation out of his estate. Should he omit taking these steps, it can certainly be to him a matter of no consequence whether the title passes to the first purchaser or to a redeeming creditor.

The occasion for the present controversy arises from the circumstance that no one bid at the sale the full value of the property. The two elder judgment creditors had no motive other than to secure their debts, and therefore did not bid beyond the amount due. If the defendant had redeemed, the whole of the present controversy might have been avoided. He was not prevented doing so by any fraud, accident or mistake. He chooses to speculate on events, and must take the consequences. If his view of the law was correct, the transaction could not have assumed a shape more to his advantage. He would have paid off the three judgments and gotten rid of the creditor’s bill with costs. In consequence of his mistake in the law, it has turned out to be an unfortunate speculation to him ; and the aid of this court is invoked to require the defendant to account for the full value of the property ; and thus to prevent a loss on the one side and gain on the other. The bill might with as much propriety be sustained for this object, against the first purchaser at a sheriff’s sale, on the ground that his bid was less than the value of the property sold. What else would that be but to substitute the fluctuating opinions of the chancellor, or of his masters, for the contracts of the parties 1 In effect, it would be worse than a valuation law. The principal object of allowing creditors to redeem from each other, seems to be to keep up the auction. If a junior judgment creditor redeems from one older, it has been seen he must not only reimburse the first redeeming creditor all his advances, with interest, but must also pay off the amount due on his judgment. This is advantageous to the debtor, as it extinguishes an increased amount of debt—and this is the only circumstance which gives any color to the doctrine insisted on by the complainant. But it cannot avail him. Any judgment creditor whose judgment was a lien, has a right to redeem from the first purchaser, and under certain conditions from each other. The judgment having the oldest lien is to be preferred, and the creditor who has redeemed with such judgment from the first purchaser, has a stronger equity to hold the premises redeemed than a junior creditor to take them from him. But if the latter pays off the judgment of the former and reimburses him the advances made, the equities are at once changed.

Again; the title which a purchaser or redeeming creditor acquires to a piece of land, is derived from (he judgment under which the sale is made, and not under that by force of which it is redeemed. The title of which the defendant was seized at the doclcetting of the former judgment is conveyed by the sheriff, and no allusion is made in the deed to the judgment under which the redemption took place. This circumstance it appears to me is decisive against the ground assumed by the plaintiff. Nor is this view of the case changed by the fact that the defendant in this case will make a speculation by being permitted to hold the advantage derived by his redeeming. If such considerations were allowed to influence the court, every sale of real estate under an execution might lead to a bill in equity; and a reference must be had to. ascertain how much the redeeming creditor must allow on his judgment out of the profits of the speculation. This cannot be done. It is far better to leave parties to regulate the prices they will give for property themselves, than that the court should make bargains for them. Cases of fraud, accident, or mistake, may be aided by this court. But every thing else may be safely confided to the keen eyed vigilance and sagacity of the parties.

J. L. Tillinghast, for the appellant.

The redemption by McLaren, was of itself an extinguishment of the judgment of which satisfaction is sought in the original bill. The property redeemed being proved to be of value equal to the redemption money paid by McLaren, and the amount of his judgment, is in point of fact a satisfaction of his judgment, and ought to be so considered in law and in equity. If McLaren’s judgment is equitably satisfied by the redemption, the offers made by him as set forth in his answer, can avail him nothing, inasmuch as the statute in positive terms gives him an absolute ownership of the debtor’s interest in the property redeemed.

D. Cady, for the respondent.

The defendant, by redeeming the complainant’s land, as set forth in the bill, acquired all the rights of the first purchaser at the sheriff’s sale, and cannot, therefore, be liable to account for the value of the land to the complainant, unless the first purchaser would have been thus liable to account had the sheriff’s deed been given to him. 2 R. S. 371, § 50, 51. By the fiftieth section, the interest vested in the purchaser by such sale may be acquired within three months, &c. By the fifty-first section, the redeeming creditor shall thereby acquire all the rights of the original purchaser. It has always, until the bill was filed in this cause, been supposed that a purchaser at a sheriff’s sale, to whom the sheriff gave a deed, acquired all the estate and interest of the judgment debtor, and that although the value of the estate purchased might exceed the sum bid ten fold, yet he was not liable to account for that excess in value. By the act of the 19th March, 1787, (1 Greenleafe, 407, ch. 56,) all and singular the lands, tenements and real estate of every debtor, are made liable to be sold on execution.

As the defendant in his answer still says he is willing to abide by either of the offers he made to the complainant, and which are therein stated, I will allow the plaintiff thirty days to make his election which to accept. The complainant is to pay all costs ; and in case he omits within thirty days to elect, the bill is to be dismissed with costs.

No debtor, whose estate was sold under that act, was ever supposed to have an equitable right to call the purchaser into this court, and make him account for the value of the estate sold. The act of the 12th of April, 1820, (Laws of 1820, p. 167, ch. 184,) giving to a judgment debt- or a right to redeem his lands, sold on execution, did not alter the legal effect of a sheriff’s sale, as to the judgment debtor, except giving to him the right to redeem within twelve months after the sale, and to remain in possession fifteen months. If the sheriff’s deed be given to the first purchaser, his title is as perfect as he would have acquired at a sheriff’s sale under the act of 1787. If this be so, then he who acquires under the fifty-first section above cited, all the rights of the original purchaser, must have the right to hold the estate free from any liability to account for its value. The defendant’s judgment against the complainant was not satisfied in whole or in part by his redeeming the lands of the complainant. (Ex parte Peru Iron Company, 7 Cowen, 558.) In the case cited, it was decided that a redemption was no satisfaction of the judgment by virtue of which the redemption is made. The supreme court at the last term, decided that a redemption under a judgment was no satisfaction of the judgment, (in the case of The Executors of Thomas Adis Emmet v. Martha Bradstreet.)

The complainant’s bill was properly dismissed, with costs, as he had shown no equity which entitles him to the relief prayed for in his bill.

The Chancellor. The vice chancellor unquestionably came to the correct conclusion in this case, that the redemption of the premises from the sheriff’s sale under a prior judgment, is not either in law or equity a satisfaction of the junior judgment of the redeeming creditor. At the expiration of the twelve months from the time of the sale, all the right and title of the judgment debtor to redeem the premises from the sheriff’s sale is forever gone. As to him, therefore, it is perfectly immaterial whether the first purchaser takes a deed of the premises at the end of the fifteen months, or the conveyance is made hy the sheriff to the junior creditor. The benefit he receives under the provisions of the statute arises principally at the time of the sheriff’s sale; as the right of any junior creditor to redeem upon the payment of the amount bid and interest, will induce the owner of the first judgment to bid at least to the amount of his debt, if the property is worth more. He may also be incidentally benefitted by a second redemption; as the second junior creditor, if he redeems, is bound not only to pay the original bid and interest, but also the amount of the second or intermediate judgment under which the first redemption took place. But there is nothing in the statute which, even by implication, conveys the idea that the redeeming creditor is to lose his whole judgment if he thinks proper to redeem property which he supposes has been sold below its value. Very few creditors would be found willing to avail themselves of the privilege of redeeming, if the consequence of such redemption was to be an extinguishment of their whole debt; or even if they were to be subjected to the expense and vexation of a chancery suit with the judgment debtor, to ascertain from the conflicting testimony of witnesses the actual value of the land at the time of its redemption. The construction statute which is contended for by the complainant’s counsel would therefore be found, in the end, to be extremely prejudicial to the interest of debtors whose property is to be sold upon execution as there would be comparatively few redemptions, and the first purchaser would make his bids accordingly.

In the case of the Peru Iron Company, (7 Cowen’s Rep. 540,) one of the questions distinctly presented for the consideration of the court was, whether (he lien of the Webber judgment, assigned to Finch, was discharged by his redemption from the first sale by virtue of his ownership of that judgment. And the court held that it was not discharged, but was still a subsisting judgment against Winter’s heirs, so as to authorize Finch to redeem from the second sale under Cady’s execution upon the Cohen judgment. And in the recent case of Emmet’s adm’rs v. Bradstreet, (20 Wend. Rep. 50,) the same court decided that the redemption by the junior creditor was no bar to an action to enforce the payment of his judgment, although the value of the lands redeemed exceeded the amount of the judgment and the redemption money. This being the settled rule of law on the subject, there is no principle of equity which calls upon this court to establish a different rule here. Although the redeeming creditor may have made a good speculation by redeeming from the first sale, he did not make it at the expense of or for the benefit of the judgment debtor, whose, right to redeem was forever gone. The latter is not therefore entitled to the benefit of the speculution, for which he neither furnished funds nor ran any risk.

And as there was no excuse for the complainant’s proceeding with this suit after the offer made to him by the defendant, the vice chancellor properly charged him with costs ; although he permitted him still to have the benefit of the offer, which was renewed in the defendant’s answer. The decree appealed from must therefore be affirmed with costs.