Harris v. Reynolds

Baldwin, J. delivered the opinion of the Court— Terry, C. J. concurring.

This bill is filed to settle and recover the value of the rents and pirofits of a certain ditch, or interest therein, bought by the plaintiff at Sheriff’s sale. The defendants are in possession. The proceeds of the sales of water, etc. sought to be recovered arise from the property since the Sheriffs sale, and before the expiration of the period limited by statute for the redemption. Treating this species of property as real estate, subject to its incidents and laws, we are brought to consider, as the main point presented by this appeal, whether these intermediate rents or profits go to the purchaser at the Sheriff’s sale, when the judgment debtor is in possession. This question involves the construction of the 236th Section of the Practice Act, (Wood’s Dig. 198.) That Section is in these words: “ The pmrcbaser from the time of the sale until a redemption, and a redemption er, from the time of his redemption until another redemption, shall be entitled to receive from the tenant in possession the rents of the property sold, or the value of the use and occupation thereof.” It is very true, as argued by the Appellant, that a purchaser, by the mere fact of his purchase, does not get title to real estate. His right is rather the right to get a title in a given contingency, and the transaction an executory, not an executed, contract. But it does not follow, because he is not clothed with a perfect title, or even because he is not.personally entitled to the possession, that he has no rights in the premises. He may have a perfect statutory right to the profits, without having a right to the subject out of which the profits proceed. Indeed, it is conceded by the Appellants that this is true as regards the party in possession, if that party is a tenant of the judgment [517]debtor. A privilege of redemption is given to the judgment debtor; but it is uncertain whether he will exercise it. Time is not given for the purpose of enabling the debtor to make a profit out of the estate, but for the purpose of enabling him to raise the money to redeem. There is no presumption that the property sells for less than its present value; and there is no compulsion upon the part of the debtor to redeem, if he is able, and if he does not, the purchaser runs the risk of the title, the depreciation or destruction of the property, and in fact, all the risks attending the ownership of property. As the law holds him to the responsibilities of owner, it entitles him to the benefits of owner, so far as the right to the profits is concerned; but it gives this right without allowing the purchaser to disturb the possession of the debtor. This redemption system is a highly artificial plan, devised with care by the Legislature, and introducing new and specific rules in respect to judicial sales. It must be supposed that the Legislature have used legal terms, according to their received legal interpretation.