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selling the factory and equipments as personal property, and the senior mortgagee could not do otherwise than buy at the sale without suffering delay, and probably serious loss. If the appellee was not satisfied with the construction of the decree given by the sheriff, it ought to have applied to the court for relief, and not have delayed until the senior lien-holder had purchased and taken possession of the property.
It is difficult to perceive how it can be possible for the appellee to affirm the sale by offering to redeem, and yet insist upon its invalidity; but this the appellee does by insisting that the property sold as personal property is in fact real estate. If it be true that the factory and equipments were real estate, then the sheriff did wrong in selling them as personal property, and the sale might have been avoided; but this is not what the appellee seeks to do, for it asserts that the sale is valid by offering to redeem. In affirming the validity of the sale it made an election, and made one that necessarily affirms the sale; and thus affirming the validity of the sale, the appellee cannot be heard to aver that Horn did not buy the mill and its equipments as personal property. He could not, indeed, have bought them as anything else, for they were advertised and sold as personal property. If they are personal property there can, of course, be no redemption. If the Bale was invalid, the appellee's remedy was by an attack upon the sale itself, and not by a suit to redeem: Jones v. Kokomo, etc. Ass'n, 77 Ind. 340.
The appellee's equity of redemption was barred by the decree, and the only claim it can with plausibility assert is, that it has a right to redeem under the statute. The only right it has to redeem, if it has any at all, is under the statute, for its general equity of redemption is cut off by the decree: Eiceman v. Finch, 79 Ind. 511; Duke v. Beeson, 79 Ind. 24. If the appellee has a right to redeem under the statute now in force, it must be for the reason that it belongs to the class of persons to whom the statute grants the privilege of redeeming, for the right is purely a statutory one, and can only be exercised by the persons upon whom the statute confers it. The law as it now stands is clearly laid down in the well-reasoned case of Hervey v. Krost, 116 Ind. 268. The rule there declared is, that a judgment creditor cannot redeem from his own sale. It is there shown that the decision in Greene v. Doane, 57 Ind. 186, was of doubtful soundness under former statutes, and that it is entirely without force under the present ones.
We must therefore accept as the settled law of this state the rule that a judgment creditor cannot redeem from his own sale.
If the sale from which the appellee seeks to redeem was made to satisfy its judgment, it has no statutory right to redeem, so that the pivotal question is, whether the sale was made on its own judgment. It will aid us in our investigation to ascertain the reason for the rule prohibiting a judgment creditor from redeeming from a sale made to satisfy a judgment in his own favor. The policy of the law is to make the property bring its full value, and to discourage persons from bidding less than the fair value of the property. It is also the intention of the law to do justice to interested parties, by securing the fair value of the property at one sale, and thus prevent the annoyance and expense of numerous sales; and numerous sales may follow where there are many successive redemptions. The law was not intended to enable a creditor to offer only part of the fair value of the property, and take the chance of a redemption; neither was it intended that the creditor should permit others to bid much less than the value of the property, and subsequently redeem from the sale. Nor was it intended that bidders should be discouraged by the uncertainty of acquiring title, and the probability that the owner of the judgment which the property was sold to satisfy might come in and redeem. These are strong reasons supporting the conclusion that a judgment creditor should not be permitted to redeem from a sale made to satisfy his own judgment, and the conclusion is supported by authority. In Hervey v. Krost, 116 Ind. 268, it was said: “While the courts favor and give a liberal construction to redemption laws in the interest of the debtor and others who are concerned that the debtor's property shall go towards the payment of his debts to the full extent of its value, and to whom the right of redemption may be their only means of protection, it never could have been intended that redemption should afford a rapacious creditor the means of speculating out of the property and upon the necessities of his debtor.” The conclusion is supported by the long line of cases which hold that where a sale is made to satisfy two judgments, there can be no redemption, although both may not be satisfied: Simpson v. Castle, 52 Cal. 644; Black v. Gerichten, 58 Cal. 56; People v. Easton, 2 Wend. 298; Ex parte Lawrence, 4 Cow. 417; 15 Am. Dec. 386; Jackson v. Bowen, 7
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Cow. 13; People v. Fleming, 2 N. Y. 484; Russell v. Allen, 10 Paige, 249; Clayton v. Ellis, 50 Iowa, 590.
The appellee is clearly within the reason of the rule, and it is within the letter, for the judgment was entered in its favor as well as in favor of the other lien-holders. There was one decree, and it was the decree of all the lien-holders. The decree authorized one sale, and it was the sale of all the judgment creditors. If the property had sold for enough to satisfy the judgment of the appellee, in whole or in part, it could not be doubted that the sale was on its own judgment; and the fact that it did not sell for enough to satisfy its judgment does not change the principle which governs the case. The decree directed the property to be sold to pay all of the liens, and made provision for distribution to the appellee, and all other lien-holders, so that there could only be one sale.
Analogous cases in our reports prove that there was but one judgment and one sale. In Harrison v. Stipp, 8 Blackf. 455, it was held that where the sheriff had several executions in his hands, and the property was not susceptible of division, there must be but one sale, and this case has often been followed and approved. The decision in the case of Steamboat Rover v. Stiles, 5 Blackf. 483, is, that where liens are filed against a steamboat, there can be only one judgment and one sale. It is true that the decision referred to is modified in some respects by the case of Rose v. McDonald, 23 Ind. 157, but it is not modified upon the point to which it is here cited.
In the case of Shirk v. Wilson, 13 Ind. 129, it was held that where several claims are filed in attachment proceedings there can be only one sale, although some of the judgments were collectible without relief from appraisement laws, and others were subject to these laws. Davis v. Langsdale, 41 Ind. 399, is not in conflict with the cases to which we have referred, for in that case the peculiar provisions of the decree prevented a sale on the junior mortgagee's claim until after the claim of the senior mortgagee should be satisfied: Langsdale v. Mills, 32 Ind. 380. Decisions of other courts come nearer the precise case before us, and are indeed decisive of the principle which rules the case. In the case of McCullough v. Rose, 4 Brad. (App.) 149, it was held that where there was an interpleader filed in a suit to foreclose a mechanic's lien, the decree was the decree of all, and that none of the parties to it, in the character of creditors, could redeem from the sale. The case of Todd v. Davey, 60 Iowa, 532, declares that a mortgagee cannot redeem from a sale made upon a decree in his favor, and cites the cases of Clayton v. Ellis, 50 Iowa, 590; Blake v. Black, 55 Iowa, 252; Poweshiek County v. Dennison, 36 Iowa, 244; 14 Am. Rep. 521; and Escher v. Simmons, 54 Iowa, 269.
The opinion in the case of Lauriat v. Stratton, 6 Saw. 339, is a strong one, and it is declared that a sale upon a decree foreclosing several mortgages is a sale as to all the lienholders, and that there can be no redemption by any one of them. The court said: “It cannot be denied, and is ad. mitted, that if the sale was made in pursuance of a decree in favor of Crooke as mortgagee, and upon process to enforce such decree as to his lien as well as that of Swegle, his lien was thereby extinguished.” The court cites, in support of its conclusion, the cases of Shepard v. O'Neil, 4 Barb. 125; Wood v. Colvin, 5 Hill, 228; Ex parte Stevens, 4 Cow. 133. It is true that in Lauriat v. Stratton, 6 daw. 339, reference is made to the statute of Oregon, and it is said that the statute requires the court to adjudicate upon the rights of all the parties to a foreclosure, but this does not weaken the force of the decision as applied to cases under our statute; on the contrary, it strengthens it, for it has long been the rule in this state that all rights and equities must be settled in one decree, and that this is one of the leading purposes of our statute: Woodworth v. Zimmerman, 92 Ind. 349, and cases cited; Masters v. Templeton, 92 Ind. 447; Stockwell v. State, 101 Ind. 1; Bundy v. Cunningham, 107 Ind. 360; Adair v. Mergentheim, 114 Ind. 303. As the law contemplates a final decree adjusting all rights and equities, and as such a decree was rendered in the foreclosure suit involved in this case, it necessarily results that a sale upon that decree was a sale on all the judgments embodied in it. This being true, it must also be true that none of the claimants in whose favor a judgment was incorporated in the decree of the court can redeem from the sale made on the decree.
The judgment is reversed, with instructions to restate conclusions of law, and render judgment upon the special findings in favor of the appellant Horn, and with the further instruction to sustain the demurrer of appellant Hawkins to the complaint.
Who mar REDEEM FROM EXECUTION OR FORECLOSU RJ BALL - The right to redeem lands sold under execution is a purely statutory right, and is regulated by the statutes that give it. In delivering the opinion of the court In Eroing v. Cook, 85 Tenn. 332, 4 Am. St. Rep. 765, Lurton, J., said: “The right of a judgment debtor to redeem his lands sold under execution is not an equitable right at all. It is the creature of statute, and depends on statute law, and 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 conveyanco of his land under judgment sale. Nothing remains to the debtor, after ex. ecution 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 land 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.” The statutes of the different states which provide who may redeem property sold under execution differ more or less from one another, but they generally confer the right to redeem upon three classes of persons: 1. The defendant in execution, and his successors in interest; 2. Creditors having liens by judgment; 3. Creditors having liens by mortgage: 2 Freeman on Executions, 2d ed., sec. 317.
A defendant in execution may, in most of the states, redeem from an ex. ecution sale, notwithstanding the fact that he has conveyed to another the property sold under execution: Yoakum v. Bower, 51 Cal. 539; Livingston v. Arnoux, 56 N. Y. 507; Jones v. Planters' Bank, 5 Humph. 619; 42 Am. Dec. 471; Harvey v. Spaulding, 16 Iowa, 397; 85 Am. Dec. 526. In the case of Yoakum v. Bower, 51 Cal. 540, the court said: “There is no good reason why the statute, which is remedial in its character, should receive a narrow construction, in order to defeat the right of redemption which it intended to give. It might be that the judgment debtor has covenanted with his suc. cessor in interest to effect a redemption from the sale; and a variety of other cases might readily be imagined in which the judgment debtor, even though he had sold the property, would still have an interest in effecting a redemption from the execution sale.” And the defendant may redeem even after he has been compelled to transfer all his assets to a receiver: 2 Free. man on Executions, sec. 317; Elsworth v. Mulloon, 46 How. Pr. 246; Livingston v. Arnout, 56 N. Y. 507. A judgment debtor whose lands have been Bold under execution may redeem them froin the purchaser without paying the amount of a prior judgment against him held by a partnership of which the purchaser is a member: Campbell v. Oaks, 68 Cal. 222. But if the execu. tion debtor, through his culpable negligence or ignorance of law, fails to redeem within the time limited by statute, he is not entitled to any relief in equity: Smith v. Randall, 6 Cal. 47; 65 Am. Dec. 475; Cumpau v. Godfrey, 18 Mich. 27; 100 Am. Dec. 133.
Any person to whom the judgment debtor conveys or assigns the property has the same right to redeem that the debtor himself has: Stoddard v. Forbes, 13 Iowa, 296; Harvey v. Spaulding, 16 Iowa, 397; 85 Am. Dec. 526; Thayer v. Coldren, 57 Iowa, 110; Watson v. Hannum, 10 Smedes & M. 521; Jones v. Planters' Bank, 5 Humph. 619; 42 Am. Dec. 471. But the assignment by the execution defendant of his right to redeem confers upon the assignee no higher right than the assignor himself possessed, and a redemption by such