Opinion
Argued December 22, 1875
Decided January 25, 1876
R.A. Parmenter for the appellant.
Samuel Hand for the respondents.
The time within which the plaintiff could redeem was limited by statute to six months after the taking of possession of the demised premises by the landlord under an execution issued upon the judgment in ejectment recovered by him. (2 R.S., p. 506, § 33.) The same statute provides, that in case the rent and costs remain unpaid for six months after the execution is executed, the lessee shall be barred of all relief in law or equity. (2 R.S., 506, § 34.) The judgment in ejectment was recovered in July, 1863. A writ of possession thereon was issued on the 17th of January, 1867, returnable sixty days thereafter. Before the return day, viz., on the 25th of February, 1867, a stay of proceedings was obtained and served by the tenant, and this stay continued in force until April 30, 1867, which was after the return day of the writ of possession. Whether any steps had been taken towards the enforcement of the writ, before the service of the stay of proceedings does not appear in the case. The return of the sheriff indorsed on the execution states that on the 10th of May, 1867, he delivered possession of the premises described in the execution to William P. Van Rensselaer, the plaintiff mentioned and described therein, in accordance with the commands of the execution. The tender of the rent in arrear was not made until September 24, 1869, and on the following day this action to redeem was commenced. It is obvious that if a writ of possession was executed on the 10th of May, 1867, the plaintiff's right to redeem had long been barred before his attempt to exercise it in September 1869. But the plaintiff insists that his right was not barred, and rests his claim upon two grounds. First. That the writ of possession having been issued on the 17th of January, 1867, and being returnable sixty days thereafter, the return day had elapsed before the 10th of May, 1867, the day upon which it is claimed to have been executed, and there could be no valid execution of the writ after the expiration of the return day. Second. That there was no actual execution of the writ on the 10th of May, 1867.
Upon the first point the learned counsel for the plaintiff has cited authorities to the effect, that after the return day of a fi. fa., the power of the sheriff to levy on personal property is gone, and the plaintiff is put to a new execution if he wishes to pursue the defendant's property. ( Devoe v. Elliot, 2 Caines, 243; Vail v. Lewis, 4 J.R., 456; Van Rensselaer v. Kidd, 6 N.Y., 333; Kingston Bank v. Eltinge, 40 id., 394.) But the only authority which he cites for the purpose of showing that this rule applies to a writ of possession is Adams on Ejectment, 346, note 1, where it is stated that the writ of habere facias possessionem cannot be executed after the return day. This note, however, is founded only upon a manuscript decision of the United States Circuit Court of Pennsylvania, cited in Coxe's Digest, page 273; and upon the case of Dent v. Simmons (7 J.J. Marsh. [Ky.], 42), in which no such point was adjudged, but only that where a writ of possession had been fully executed, and the plaintiff in ejectment put in possession and the writ returned executed, and the defendant in the execution afterwards re-entered, the proper remedy for restitution was by warrant for forcible entry, and that an order for an alias writ of possession was erroneous.
We are of the opinion that the conclusion of the Supreme Court upon this branch of the case was correct, and that the writ of possession could lawfully be executed after the return day. The judgment bound the land of which the writ directed possession to be delivered, and the office of the writ was simply to carry the judgment into effect with reference to that particular piece of land. Formerly such a writ usually had no return day. (Crocker on Sheriffs, § 575.) The plaintiff had the right to take possession of the land, by virtue of the judgment, without any writ, if he could peaceably do so. We think that in such a case the command to return the writ within sixty days is directory merely. Such an execution is not analogous to an execution against personal property, where a levy is necessary to subject it to the operation of the writ, but is more analogous to a proceeding to sell real estate under an execution, which may be had without any previous levy, and which the appellant's counsel concedes in his brief may be taken after the return day of the writ.
This brings us to the second point made by the appellant, viz., that the writ was not in fact executed on the 10th of May, 1867.
The judge found as a fact that the execution was duly executed on the 10th day of May, 1867, by the sheriff, who assumed to deliver possession of the premises in question to W.S. Church, the agent of the assignee of the plaintiff in the execution, he being then upon the said premises. We think that this finding is sustained by the return of the sheriff, and the other facts proved upon the trial and found by the judge. As to the only part of the premises which were occupied, the sheriff demanded possession of the occupant, and threatened to remove him unless he consented to acknowledge himself as holding under the landlord, which he did in writing. As to the unoccupied portions of the farm, the sheriff went upon them, and assumed to deliver possession to said agent, Church, who was thus, for the time being, placed in actual possession of the farm, so far as possession thereof could be delivered. Although it was the duty of the sheriff, if required, to remove from the premises the personal property thereon, yet there is no authority cited showing that the omission to do so vitiates the execution of the writ, when possession of the land is delivered.
What transpired after such execution of the writ is not material to the present case. If possession of the farm was delivered to the plaintiff or his assignee, by virtue of the writ, the statute began to run from that time, and the time limited for redemption could not be enlarged by the subsequent re-entry of the appellant.
Both parties appear to have rested upon their strict legal rights. The time for redemption being limited by statute, and having expired, and the statute declaring all relief at law or in equity to be barred, the court had no discretion in the matter, and was bound, upon the facts proved, to dismiss the complaint.
The judgment must be affirmed.
All concur; MILLER, J., not sitting.
Judgment affirmed.