Kercheval v. Wood & Luther

Since the act of 1851, (L. 1851, pp. 84, 85,) the interest of any purchaser of Primary School Lands holding by certificate of purchase is liable to levy and sale under execution.

Case reserved from the Wayne -Circuit in Chancery. The bill in this cause was filed in aid of an execution issued on behalf of the complainant against the defendant, and levied upon the interest of the defendant, Wood, in certain real estate, known as “ Primary School Land,” sold to him by virtue of the act of March 21,1837, for the sale of “ Primary School Land.” A certificate of purchase had been delivered to Wood, dated Sept. 5,1837. No patent had been issued, and it did not appear that the amount due the State was fully paid. The bill embraced other matters not material to be stated. There was a general demurrer under which the question arose, whether, and to what extent, if at all, the interest of the defendant, Wood, was subject to levy and sale under execution. 1. Under the statute, (§ 1, ch. 79, p. 317, JR. 8.,) every interest in land susceptible of present absolute transfer by the party, may be sold on execution. By § 3, ch. 1, p. 36, R. S., “ the words real estate, shall be construed to include lands, tenements, real estate, and all rights thereto a/nd interests thereinP The statute first cited embraces all interests in real estate, except such as are known as merely equitable interests. The interest of a purchaser of School Lands under the act of 1837, must be legally construed to constitute an estate in fee simple. It is such if a present estate of inheritance passes by the certificate, (R. S. 250, § 2.) The term is present, not executory', the land is sold, not agreed to be sold. By it, an estate of inheritance passes; it goes to the heirs upon the death of the purchaser. (S. L. 1837, 209, §§ 11,12, and 13.) Estates in fee may be absolute and conditional. This is conditional, and by the statute, the position of the purchaser is analogous to both that of the holder of a certificate of the public lands of the United States, and also to that of a purchaser who receives a deed, and mortgages back for the purchase money. In both cases, no doubt, the fee rests at once in the purchaser, without in one case obtaining a patent, or in the other, a discharge of the mortgage. ((Jarroll vs. Bafford, 3 How. IT. S. JR. 441; Landes vs. Brant, 10 75.348; JacJcsonvs. Williams, 10 Ohio, 69; Bond vs. Swearingen, 1 Ha/rr. 395.) Whatever may be the nature of the estate, the subjoined cases show that the mere interest in possession, if nothing more, may be levied on. (Jackson vs. Scott, 18 J. R. 94; Jackson vs. Parker, 9 Cow. 73; Jackson vs. Walker, 4 Wend. 462; Miner vs. Wallace, 10 Ohio, 403; Jackson vs. Williams, Ib. 69; 3 Podge, 219.) The interest of the defendant, Wood, was a mere equitable interest,'and not liable .to execution. (1 J. Ch. R. 52; 17 J. R. 361-366; 2 JBlackf. 431.). There are, it is true, two cases in New York, (18 J. R. 94; 9 Cow. 73,) ruling that an equitable interest, coupled with actual .possession, may be taken in execution, but they are distinguishable from the present in this, that it appears by the cases themselves that the possession- only, and not the equitable title, is affected by the levy, and such possession can only be taken on the technical ground at law, that one in possession is estopped from denying his title; a ground that does not reach this case, because, here, the bill itself shows what' the title is. But with these two exceptions, the authorities are uniform, that the interest, of a purchaser without a deed, and who has not paid all the purchase money, cannot be taken, although the purchaser is in possession. (3 Paige, 219; 6 IIill, 525; 5 Gow. 485; 2 Barb. S. 0.458.) Possession is part of the interest, and cannot be severed from it, and sold. {See 2 Ired. Gh. JR. 45; 4-II. 494; 5 S.cbM. 730; 1 Bibb. 307; 13' Ala. 192-360.) But even if the possession under a contract for purchase, can be separated from the interest, it becomes such an estate as cannot be reached by execution under our statute. (Proprietor, &c., vs. McFarlan, 12 Mass. 324; Doolittle vs. Eddy, 7 Barb. S. C. 76; 3 Kent, 452.) Though in England, one who enters under an agreement for a ’ lease, or to purchase, is a tenant at will, unless he pays, or agrees to pay rent. Our Courts, in several cases, have considered it a mere license. (9 J. R. 35 and 331; 7 Cow. 229; 3 Wend. 104; 21 Ib. 230.) The Legislature has recognized this interest as a chattel, by providing for its assessment as personal property. {Sess. Z. 1853,131, §11.)