October Term, 1853
N. Hill, Jr. for the appellant.
Warren Newton for the respondent.
I should entertain no doubt in this case, either as to the justice or legality of the judgment or decree of the court below, had this suit been instituted by John Curtis, or had the plaintiff shown that he had succeeded to the equitable rights of John Curtis in the subject matter of this suit. I think the plaintiff has failed, however, to show any such thing. Curtis was in possession as a purchaser from Harris Medbury, who held a contract from the surveyor-general of the state. The purchase by Curtis and the payment of the consideration by him, and the quit-claim deed from Medbury to him, was effective to give Curtis an equitable title to these premises whenever Medbury's contract with the surveyor-general was paid up. It should be borne in mind, however, that the only interest which Medbury had in these premises, at the time of his sale and conveyance to Curtis, was that of a purchaser in possession under a contract of purchase, and as regards the state with only about one-fourth of the purchase money paid. The most, therefore, that can be said of this quit-claim deed from Medbury to Curtis is, that it was operative to transfer and convey from Medbury to Curtis all his right and claim to this part of the lot. This deed could not transfer any greater interest than Medbury himself had. (1 R.S., 738, § 43; 1 Comst., 242.) The most that can be claimed, therefore, for the quit-claim deed from Medbury to Curtis, is that it operated as an equitable assignment of so much of Medbury's present interest as pertained to these acres, and to that extent was an equitable assignment of so much of Medbury's interest in his contract with the state. Curtis's rights, therefore, rest in a contract of purchase from the state, and if he ever comes into court to obtain a conveyance of this title, he must rest his claim upon this contract of purchase from the surveyor-general. It is not pretended that Medbury had such an interest in these premises at any time as could be sold on a judgment and execution against him. He never had any right to the land in question except under his contract of purchase of the surveyor-general, and that was not such an interest as could be sold on judgment and execution. (1 R.S., 736, § 4; 1 John. Ch. R., 51; 17 John., 356; 3 Paige, 220; 9 Paige, 422; 10 Paige, 562; 2 Barb. Ch. R., 458; 6 Barb., 116; 9 Paige, 74; 4 Paige, 578; 6 Hill, 525.) To hold, therefore, that Curtis had an interest in these premises which could be sold on execution, involves the absurdity of saying that a greater interest passed by the quit-claim deed from Medbury to Curtis than was possessed by the grantor. This must be so, as far as Curtis's rights to acquire this title either of the state or of Cartwright was concerned, for they all rest upon Medbury's contract of purchase from the surveyor-general. If, therefore, it were admitted that Curtis's right of possession, he holding that possession under a deed, could be sold on an execution, which I think we have shown could not be, I do not see how that would help the plaintiff's case. The equitable interest in these lands under contract most certainly would not pass by such a sale, for an execution sale of the possession could not carry with it the interest under the contract to purchase.
If we are right in the views above expressed, then it follows as a consequence that the plaintiff cannot maintain this action, for the reason that he did not, as a purchaser at the sheriff's sale on the judgment in favor of the Bank of Chenango against Curtis, acquire the equitable title of Curtis as purchaser.
I am of the opinion for the reasons above expressed that the judgment of the court below should be reversed, and the bill dismissed with costs.
DENIO, J., did not hear the argument.
All the other Judges concurring,