Ott vs. Rape and another.
Warner of rights under sheriff’s sale.
Where the purchaser at a sheriff’s sale oí lancUaccepts part of the purchase-money, he waives his right to enforce a forfeiture of the equity of redemption, according to the terms of the certificate of sale, and converts the certificate, and his interest in the land under it, into a mere security for the balance of 'the purchase-money.
APPEAL from the Circuit Court for Dane County.
Ejectment, against Rape and Gilbert. Gilbert alone answered. The facts, as found by the court, were substantially as follows: In April, 1865, Ott, having a judgment against Rape for about $66, had the land here in *337dispute, wMcli then belonged to Rape, sold under an execution upon said judgment, and himself bid it off for the amount of the execution debt, and received the usual certificate of sale. At this time Rape was absent from the state, and after his return,viz., in April, 1866, without any knowledge that the land had been so sold, he paid Ott $40 in part satisfaction of said judgment, and took from him a receipt, which stated that said sum was “received on account of sheriff’s certificate in favor of George V. Ott,” meaning said certificate of sale. Afterward, in 1867, Ott applied for and received a sheriff1 s deed upon said certificate ; which deed was the only foundation of his claim in this action. Gilbert, in May, 1867, purchased the land of Rape (who was then iu possession),- for a ftill and valuable consideration. In September following, this action was commenced against Rape alone ; Gilbert was afterward permitted to come in and defend ; arid afterward, in December, 1867, he tendered to Ott $76, being the amount due him on the certificate, with interest at ten per cent from the daj^ of sale ; and also offered to pay the costs of this action up to that time, and the expense of executing a quit-claim deed, which he demanded of Ott. On these facts, the court held that, at the time such tender was made, Ott had only a lien upon the premises for $76 ; that he was entitled to recover of defendants the costs of this action up to the time of such tender ; that Gilbert was entitled to recover of him costs subsequent to the tender ; that Gilbert ought to deposit forthwith with the clerk of the court, for plaintiff, said sum of $76, and the costs adjudged to plaintiff, after deducting the cost adjudged to Gilbert, with $1.50 for expenses of drawing and acknowledging the deed hereinafter mentioned, and fifty cents for a revenue stamp therefor; and that, upon notice to him of the deposit of such moneys, plaintiff ought to execute to Gilbert a quit-claim deed of the premises, with release of dower by his wife, and with *338covenants of special warranty against any acts done or suffered by him, affecting the title thereto since the execution to him of said sheriff’s deed. Judgment accordingly; from which plaintiff appealed.
II. W. & D. K. Tenney, for appellant :
The right to redeem from a sale on execution is a strict, statutory, legal right. It is not an uncertain equity, to be enlarged, contracted or changed according to the discretion of a court of equity, nor can performance be dispensed with or delayed, nor any substituted performance allowed. Redemption is also an entire thing. There is no such thing as part redemption. Any thing short of full redemption is no redemption at all, and of no effect. The right to redeem is a grace offered to the debtor. He cannot palter with it, nor subdivide it, but must take advantage of it strictly on the terms offered, or not at all. 4 Gfreenl. 454; 6 id. 142; 9 id. 128 ; 1 Barb. Oh. 53; 1 Denio, 272 ; 20 Wend. 555; 1 Cow. 481; 7 id. 540 ; 15 N. Y. 528 ; 23 Barb. 278; 7 Hill, 159, 177 ; 22 Vt. 318 ; 27 Ala. 193 ; 14 Ill. 26 ; 25 N. Y. 619 ; 14 Cal. 54; 4 Comst. 535; 11 Humph. 135; 5 Gfilman, 171; 12 Mich. 234. The plaintiff might have refused to receive the money in installments. His reception of the $40 waived that right, and nothing more. It was, in effect, saying, ££I will receive the amount in installments, instead of all at once, but, of course, upon the condition that the whole is paid in time.” The receipt does not say the money was received as “part payment,” or as “part redemption;” much less does it say “the right ever to take a deed is hereby relinquished.” It only says the money was received “on account of the certificate;” that is, that this was to be taken account of in connection with the balance expected, and if the whole should be paid within the two years it should be a redemption, otherwise not. The case is like that of a land contract, where time is made of the essence of it, and the real question *339is, whether the payment was upon the contract and wartod execution of it, or whether there was a rescission of the contract. Where the payment is made upon the contract, part payment does not give part title, nor can the money be recovered back, It gives the paying party only a right to go forward and complete the contract on his part, and then demand the execution of it from the other according to its terms. On the’ contrary, when there is a rescission of the contract, the parties are placed back in the position they would have occupied if they never had made it. 4 Greenl. 454 ; 9 id. 128 ; 14 Mass. 266 ; 5 Cush. 273 ; Ransbrough v. PecTc, 5 Wall, 497 ; 6 Clarke (Iowa), 153 ; 10 Iowa, 427 ; 30 Ala. 715; 6 Gray, 412 ; 11 Wis. 193. Counsel also contended that in the case of Southard v. Pope's Rx'r (9 B. Monroe, 261) there was a redemption, made and agreed upon as such.
Spooner & Lamb,. for respondent,
argued that the claim made for the plaintiff amounted to this: that if real estate be sold on execution for $10,000, and the debtor makes a partial redemption by paying the purchaser $9,995 within the two years, but fails to complete it by paying the residue, the purchaser has a right, in equity, to hold and enjoy the estate in the same manner as if no partial redemption had been made. A better proposition is, that if the purchaser at execution sale accepts, during the time for redemption, a part of the amount for which the land was sold, he places himself and the debtor outside of the statutory relation in which they stood to each other, and converts his title into a mere lien to secure the balance of the purchase-money. This principle does complete justice' to both parties. It is obvious that the statute contemplated only two states of fact — full repayment of the money and interest to the purchaser, or no repayment — and it has defined the rights of the parties in each of those cases. The rights of the parties in case of a partial *340redemption are not defined. Such a case is so rare that it could hardly have been foreseen. We can find only one such in the books, viz., Southard v. Pope's Ex'r, 9 B. Mon. 261. In that case the conrt solved the question at once, by holding that the act of accepting a partial payment was inconsistent with the right to make the purchase absolute, and was a waiver of that right.