7 Hill & Den. 150

Ex parte Wilson.

Where the tenant’s interest in a lease originally given for twenty-one years was sold on execution, but less than five years of the term remained unexpired at the time of the sale; held, that no right of redemption existed, though the lease contained a covenant for renewal.

Redemption. On the 9th of June, 1841, H. Wilson obtained a judgment in the supreme court against Evert A. Banker. The latter was then the owner of a leasehold interest in two lots situated in Delaney street, in the city of New-York, viz. lots No. 309 and 315. The lease of lot No. 309 was for twenty-one years from the 1st of January, 1826, with a covenant for renewal on the expiration of the térro,, at the option of the lessee; and the other lease was for the same number of years from the 1st of May, 1826, with a like covenant for renewal. On the 14th of February, 1843, the right and title of Banker was sold by the sheriff on a judgment older than that of Wilson, and a certificate given to the purchaser. At the proper time in May, 1844, Wilson tendered the requisite documentary evidence of his right to redeem, together with the purchase money &c., and demanded a deed of the sheriff, but the latter refused to give one. A motion was now made for a mandamus in behalf of Wilson, commanding the sheriff to give a deed.

H. Wilson, in person.

I C. Hart, contra.

By the Court,

Nelson, Ch. J.

The right to redeem turns upon the true construction of the act of May 16th, 1837, (Sess. L. of 1837, p. 540,) as the judgment was not a lien upon a term for years at common law, (7 Wend. 466,) nor within the original redemption law. (17 Wend. 674 ; 20 id. 416.)

The act of 1837 provides that the révised statutes relating to the sale and redemption of real estate “ shall be applicable to *151the sale and right of redemption of leasehold property, where the lessee, or the assignee of the lessee, shall be possessed of at least jive years unexpired term of the lease, and also of any building that may be erected thereon.”

In the present case, one of the leases will expire on the 1st of January, 1847, and the other on the 1st of May, 1847; both short of five years from the time of the sale, which was on the 14th of February, 1843.

It was suggested on the argument that the time should be calculated from the docketing of the judgment under which the redemption was sought; but I can perceive no ground for that position. The act refers, in respect to time, either to the sale, or to the period of redemption; and the better construction I think is in favor of the former. The legislature intended to give the right of redeeming to the defendant or creditor, in cases where an unexpired term of five years has been sold under the execution.

It was further suggested that the covenant for renewal should be regarded as a virtual prolongation of the term, within a liberal construction of the act. But this would be substituting a mere right resting in contract, for a fixed and definite interest in the land; the only interest or estate which the act mentions or contemplates.

I am of opinion that the motion for mandamus should be denied.

Ordered accordingly,.

Ex parte Wilson
7 Hill & Den. 150

Case Details

Ex parte Wilson
Decision Date
Sep 1, 1844

7 Hill & Den. 150

New York



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