
    Kannon vs. Pillow.
    Whore land is sold at execution sale, and the purchaser takes possession, and such land is redeemed, the owner is not entitled to rent or damages for waste before the redemption, but is entitled to rent for the time he was wrongfully kept out of possession after redemption.
    There were two suits instituted by Kannon against Pillow, in the Circuit Court of Maury county — one suit for rent, in the form of assumpsit, the declaration containing three counts: the first, a special count, setting forth the facts — the second, a common count for use and occupation of land, and the third, a count for money had and received. There was a demurrer by defendant to first count, and non-assumpsit as to the others.
    The action for damages is a special action on the case, in the nature of an action for waste. The declaration contains three counts, in substance the same, setting out the facts, and averring the commission of waste.
    There was a general demurrer to this declaration and joinder.
    The issues of law arising on the pleadings, were decided by the presiding Judge, Dillahunty, in favor of the defendant.
    The issue of fact was submitted to a jury, when it appeared, the land, in the declaration mentioned, was sold in due form of law at execution sale, upon a judgment against the present plaintiff, and the defendant became the purchaser. The sale was made upon the 24th December, 1842, and the defendant immediately thereafter took possession. On the 27th January, 1S43, the sheriff’ executed to him a deed for the land, which was thereupon duly proved and recorded. At the time of the sale one-Perry was tenant, in possession under Kannon. He afterwards attorned to Pillow, and agreed to pay, and did pay, to the said Pillow $130 rent per annum for the years 1843 and 1844, and continued in possession of the premises under his contract with Pillow during that time. It appeared that $130 was a reasonable rent per annum for said land, and that the said rent for the two years had been received by the said defendant before the commencement of the present action.
    On the 20th August, 1844, Kannon, the plaintiff, redeemed the land according to the statute in such case made and provided, by paying $1600, the amount bid at the execution sale, and $264 90, ten percent, interest, damages, &c.; and on the said 20th August, 1844, the purchaser reconveyed to the judgment debtor, Kannon, by deed in writing, which was proved and recorded on the same day.
    At the time of redemption the crop of the tenant for the year 1844 was laid by, but not gathered, except fodder and the like. The tenant remained upon the place until the end of the year, gathered the crop raised and paid the whole rent to the defendant.
    The court charged the jury among other things not excepted to, in substance as follows: “That a purchaser of land at sheriff’s sale was entitled, upon obtaining a deed from the sheriff, to the possession of such land; that this right to the possession carried with it, necessarily, a right to the rents and profits, the possession being to no purpose in any other view.”
    The court further charged, that “though the land was subsequently redeemed under the provisions of the act of 1820, that the purchaser was entitled, to the rents and profits, as well as to the 10 per cent, per annum allowed as interest upon redemption; and that the judgment debtor could not after complying with the provision of the statute, recover the said rents and profits from the purchaser.” He further charged, that “if the purchaser or his tenant had, before redemption, planted his crop, and the judgment debtor had allowed the crop to be cultivated until it was ready to be harvested, without offering to redeem, that the purchaser or his tenant would be entitled to gather and carry off said crop after it had been redeemed and reconveyed to the judgment debtor, and that the redeeming debtor under these circumstances would have no claim to any portion of the ungathered crop, or to any rent for the use of the land and premises during the remainder of the year after redemption. The law was otherwise if the execution debtor redeemed before the crop was pitched. He had a right to redeem any time in two years after the sale; but in the exercise of this right he could not turn the purchaser or his tenant into a wrong doer, and if he chose to wait until the purchaser or his tenant had raised a crop, he was not entitled to it, and could not by his own act raise a duty on behalf of the purchaser to pay him rents or change a contract between the purchaser and his tenant. If the purchaser is entitled to the possession under the sheriff’s deed, he can hold by himself or his tenant as he pleases, and if he can hold by a tenant, he can charge him much or little, as the parties may agree, andthe purchaser or tenant, if liable at all, would be liable for full rent, thereby making the purchaser an agent for the execution debtor, and holding him liable for acts that might not be to the advantage of his principal, or causing the tenant to pay rent that he never agreed to pay.”
    The jury returned a verdict in favor of the defendant. The plaintiff" moved for a new trial, which motion was overruled, and judgment rendered for the defendant.
    The plaintiff appealed.
    
      W. F. Cooper, foi the plaintiff.
    The questions raised by these records are simply:
    1st. Whether a purchaser at execution sale who takes possession of the land under a deed from the sheriff, within the two years allowed for redemption, is liable to the redeeming debtor for rent during the time he so remained in possession?
    And 2nd. Whether such purchaser, under the same circumstances, is responsible for waste committed by him while thus in possession?
    It is believed that neither of these questions has been definitively settled by this court in any published decision, although, as will presently appear, there is at least one manuscript opinion upon the first question. It is not a little surprising, that after twenty-six years practice under the act of 1820, these questions should still remain undetermined. The first may, however, be explained by a reference to the practice of the country, which, we are informed, was universal until of late years, that the purchasers at execution sale never took possession of the land until the time for redemption had expired. Not many years have elapsed since this court was first called upon to hold, that the purchaser was entitled to the possession of the land immediately upon his purchase — so general and inveterate seems to have been the practice alluded to. Tt is not intended to controvert any of the decisions of the court heretofore made — on the contrary, it is admitted that such decisions are unquestionably correct, and founded upon sound policy and a proper interpretation of the law. That the purchaser should have a right to the possession of the land as soon as he pays the amount bid at the sale, seems both just and reasonable; for, it may be, that the land will never be redeemed, and the purchaser would be deprived during two years of the use of his money without remuneration, if not entitled to the possession of the land from the time of the purchase, which would be manifestly unjust. But, on the other hand, it would seem to be giving to the other extreme to hold that such purchaser upon redemption is entitled to the ten per cent, allowed by the statute for the use of his money, and also to the rents and profits of the land, which might far exceed the ten percent, interest. And it would be glaringly unjust to allow such purchaser in addition to all this, to commit waste ad libitum upon the property.
    Real estate was a favorite with the common law, and coaid not be sold for the satisfaction of debts. The condition of this country upon its first settlement produced such a change in the relative importance of land, as compared-with other property, that the statute of 5 Geo. 2, ch. 7,1732, was passed, subjecting lands to execution sale; and even this statute, it is. intimated by Chancellor Kent, 4 Com. 429, was passed for the benefit of British creditors, to enable them more readily to recover their claims from their colonial debtors. The importance of this kind of property has, however, been gradually assuming its common law rank; and there are at present few States of this union in which some checks to the unrestricted sale of land does not exist. Sales of land on execution have been attended with so much offensive speculation upon the necessities of the debtor, that some checks have been deemed indispensable upon the peremptory and sweeping desolation of an execution at law. These evils were peculiarly felt in this State, under the pecuniary difficulties attending the monetary crisis immediately preceding the act of 1820. It is laid down as one of the primary rules in the construction of a statute, to consider the evils which it was intended to remedy, and to give, if possible, such construction to the statute as will be most likely to remedy those evils, and thereby effectuate' the intent of the law-making power. It is a part of the history of the country that the pecuniary embarrassments of the years immediately preceding the act of 1820, were of such a character as to demand the assistance of every department of government to relieve the distress thereby occasioned. The act of 1820 was a remedial statute, passed for the benefit of debtors, giving them two years to enable them to save their homesteads or their family negroes; and although a different state of affairs may exist at present, the court will still consider it as a remedial statute, and give it the liberal construction usually extended to such statutes.
    It seems to us that the true construction of the act of 1820, is this: The purchaser is authorised to obtain a deed and to take possession of the land so as to receive the rents and profits in the event the land should never be redeemed, as a recompense for the use of his money; for otherwise he might in this event be wholly deprived of the use of his money for two years. But when the purchaser redeems, the ten per cent, must be considered as ample remuneration for the use of the purchase money; and to allow him their rents and profits in addition, would be legalising usury, giving the purchaser an exorbitant premium, and entirely destroying the beneficial intent of the statute.
    The object of the statute unquestionably was for the benefit of debtors. It may reasonably be supposed the legislature expected that the debtor might look to the rent of the land as a fund to aid him in the redemption. The real estate of the debtor was the last property to which the creditor could resort for the satisfaction of his debt; the personal property must have been exhausted before recourse to the land. After the sale of the land the debtor would be left without property, de-pendant upon his personal exertion for support, as well as for obtaining the means of redeeming his estate. Is it going too far to presume that the legislature intended the rent as a source of aid to tho unfortunate debtor — nay, without such construction could the statute be considered as a beneficial statute?
    Again, land sold subject to redemption, always sells for less than when sold absolutely. The condition of the debtor is therefore worse after than before the act, if the construction contended for by the counsel for the defendant in this case is sustained. His property sells for less than it did before the passage of the act, he cannot look to the rents to aid him in his difficulties, and he must raise money at the rate of ten per cent, to redeem his rights. Such a construction would render the statute more grinding than the old dead pledge of the English common law.
    It is easy to see what enormous profits, what exorbitant usury would accrue to the purchaser in many cases under the construction contended for. A tract of land sells for half its value, or as in this case, for scarcely a third of its value, the rent may amount to more than the interest of the money even at the rate of ten per cent. Nay, cases may readily be supposed, and doubtless do occur, where the rents and profits may nearly equal the amount of the purchase money — as in the case of town property or large cleared plantations. Certainly the legislature never intended that this, a remedial statute, should enure so largely to the benefit of purchasers. The law as it existed prior to the act ought rather to have been preserved, if this is the proper construction. The object of the statute is entirely annihilated, and it becomes an absolute injury to the debtor and a positive benefit to the purchaser.
    The construction insisted upon cannot interfere with: the rights of purchasers, or injure their interests. Their protection is sufficiently guarantied by the right to the rents in the event the land is never redeemed, and by the ten per cent, interest upon the purchase money upon redemption. Surely a debt secured by real estate, and bringing ten per cent, interest, ought to be all that a purchaser should ask for under a remedial statute, expressly passed for the benefit of debtors, possessors of landed property.
    The construction of the statute here contended for, is very ably sustained in a manuscript opinion of a former judge of this court, which I now propose to read as an authority in point, Sheratts vs. Firestone MS. at Knoxville, opinion by Peck, J. The question, I am informed by Mr. Meigs, one of the counsel in the cause, came before the court on exception to the report of the Clerk and Master, in a suit in chancery. The land of Sheratts was purchased at execution sale by Firestone, but no deed was ever' made to him by the sheriff. It was agreed between the parties that Sheratts should continue in possession of the land, and should pay Firestone $50 per annum rent. The rent it seems was paid, but in the final account made out between the parties, the Chancellor allowed this rent to be set off as so much paid in extinguishment of the indebtedness due from Sheratts to Firestone. Upon appeal, the Court of Errors and Appeals affirmed the decision of the Chancellor — Judge Peck basing his opinion upon the construction of the act of 1820, and J. Whyte founding his upon the fact, that no deed had ever been made by the sheriff to Firestone as purchaser, and that the purchaser at execution sale could not claim rent unless the legal title were vested in him. That Judge Whyte’s argument was fallacious, cannot, I presume, admit of a doubt. The parties were in a Court of Chancery, where their rights were to be equitably adjusted, a court which considers that as done, which ought tobe done, and where if Firestone had been really entitled to the rent under proper construction of the act of 1820, the court had the power to allow him such rent. Besides, the agreement on the part of Sheratts to pay rent, created the relationship of landlord and tenant between himself and Firestone, which he ought not to have been heard to dispute. The only ground upon which the decision can be sustained, is the ground taken by Judge Peck.
    But even if we are wrong in this construction of the statute, I presume there can be no doubt that the plaintiff is entitled to rent for the remainder of the year after redemption. The land was redeemed upon the 20th August, and upon the same day reconveyed to the plaintiff by the defendant. The court below erred in its charge to the jury upon this subject. That the purchaser or his tenant after crop planted before redemption, would be entitled to the crop, may be admitted to be clear law, but that reasonable rent for the use of the land, where the purchaser retains possession of the whole place, after redemption should be allowed the redeeming debtor, seems infinitely clearer. In Gooly vs. Weeks, 10 Yerg. 141, 145, this court held, that the purchaser of a slave, who had refused to reconvey to the execution debtor upon a lawful tender under the act of 1820, was bound for hire from the lime of the tender. Would not the doctrine be the same, if the purchaser actually reconveys but retains possession? And can there be any distinction between the case of land and the case of negroes? The strict common law rule in relation to the apportionment of rent has long sincejb'een exploded, and it is now the settled doctrine, that rent will be apportioned in respect to time, as well as in respect to quantity of estate. 3 Kent Com. 169, 571. 17 Serg. & Rawle, .171. The purchaser or his tenant upon redemption, after crop pitched, would be entitled to ingress and egress for cutting ánd carrying off the crop, free of charge. But if the purchaser or tenant retained possession of the whole plantation after redemption as before, he must pay rent for such use and occupation to the redeeming debtor. The rule is the same in regard to the rights of the representative of a tenant for life and the remainder man, where the tenant dies after crop planted. The representative is entitled to the crop, and to free ingress and egress for cutting and carrying off, but if such representative keeps possession of the whole plantation, he will be liable for reasonable rent to the remainder man. 1 Will, on Ex. 460. Thompson vs. Thompson, 6 Mumf. 514. Hunt vs. Watlcins, 1 Hump. 498. It is, therefore, insisted in this case, that as the purchaser, by his tenant, actually kept possession of the whole tract of land until the end of the year 1844, and received full rent, he is responsible to the plaintiff for such portion of the rent, at all events, as ma}’’ be deemed just and reasonable for the use and occupation subsequent to the 20th August, 1844.
    If the plaintiff is entitled to the rent of the land while in possession of the purchaser, before redemption, or to rent for the use and occupation after redemption, I presume there can be no doubt as to the remedy to which he is entitled. He would have his action upon special assumpsit, or for use and occupation. At all events, the amount actually received by the purchaser may be recovered on a count for money had and received. The proof in this case shows, that the rent was actually paid to the purchaser by the tenant before suit brought; unquestionably if it is due and owing to the plaintiff, it may be recovered in the form of an action, which has been adopted.
    With regard to the suit brought for the waste committed by the purchaser while in possession of the land, I have little to say. The rights of the plaintiff seem so clear and manifest as to require little comment, andto render it matter of wonder, how a court, construing a remedial statute passed for the aid of debtors, could decide against them. Whatever doubt we may entertain in relation to the claim of the purchaser for the rent, we surely cannot suppose it to have been the intention of the legislature to give him, in addition to,such rent and the ten per cent, allowed for the use of his money, the further privilege of fleecing the debtor and enriching himself by the commission of waste. This would, indeed, be most monstrous. Nothing but the most positive language, the interference of some iron rule of law, it seems to us, would induce a court of justice to put such a construction upon a remedial statute. Even in the case of a private contract between individuals for the sale of property, with the right within alimitedtime to re-purchase, this court would hold the purchaser responsible for wilful damage done to the property while in his possession. The very fact, that the liberty of re-purchase was allowed the vendor, would necessarily imply the keeping the article as near as possible in the condition in which it is sold. The contract would be construed to mean necessarily the re-purchase of the identical property sold; not that property stripped of many of its valuable appurtenances by voluntary waste on the part of the purchaser. How much stronger ought this principle to govern in the case now under consideration? Here is property sold at-execution sale, which by the very language of the statute is subject to redemption to the extent of the interest originally sold. The reasonable construction of the wordings of the act, would require a re-con'veyance, upon the compliance by the debtor with the requisites of the law, of the very property parted with; not that property changed and altered by the hand of an unfeeling purchaser. In addition, the statute was passed for a specific purpose, to remedy particular evils, to confer particular privileges and benefits, and the courts are called upon to construe it so as to effectuate these objects. Surely it cannot be contended, that the construction of the counsel for the defendant in this case, is such a construction as will carry out the intention of the legislature in the passage of the act.
    Again: If the purchaser may cut down the least quantity of timber over and above that required for the reasonable use of the place purchased, he is equally authorized to cut and carry off the whole timber, to remove dwellings, fixtures; to convert, in fine, to his own use every thing that can be taken from the soil. It is easy to see how easily the purchaser could turn such a privilege to his advantage.
    Real estate sold at execution always brings less when subject to redemption, than when sold without this condition. The purchaser has nothing to do but to appropriate to his own use, so much of the timber, fixtures, &c., as will reduce the value of the land to the price paid for it at the sale. Then, whether the debtor redeems or not, he is equally safe. The speculation which would thus be generated, would be infinitely worse than that which attended execution sales of land prior to the act of 1820.
    It will not do to say that the legislature have provided a remedy for any omissions upon this subject in the act of 1820, by the statute passed on the 26th January, 1844. This court will construe the act of 1820, as if the last statute had never been passed. The statute of 1844, has only settled legislatively what the courts would have settled judicially, had they been called upon to construe the statute of 1820 before the passage of the act of 1S44. It appears to us, that the most liberal construction of the redemption law of 1820, in favor of purchasers, would never give them the right to materially injure the property purchased, and that the subsequent statute, like the statutes of the 13th and 27th Eliz., in relation to fraudulent gifts and grants, and the statute of Anne, with regard to the negotiability of promissory notes, is simply confirmatory of the Taw as it existed before the passage of the act.
    But in truth, the act of 1844 takes away the only doubt which might have been entertained as to the plaintiff’s right to recover in this case. The language of the statute is: “That it shall not be lawful for any person, holding the temporary title to leal estate subject to redemption, to use more of the timber thereon than shall be necessary to keep the improvements in good repair, and furnish firewood — neither shall it be lawful for such persons to destroy or remove, from the land any fencing or buildings.” The second section furnishes a remedy for preventing the commission of waste by injunction, and proceeds thus: “The person having the right to redemption may, after having redeemed the same, bring an action upon the case at lav/, and recover the full damages for such waste.” Here is a prohibition against the commission of waste by any person holding property at the time of the act subject to redemption, and 'giving the injured party the very remedy which has been •usecl in this case. The act was passed upon the 26th Jan. 1844. This suit was commenced in December 1844, and alleges the commission of waste by the defendant between the 27th Jannary, 1843, and the 20th August, 1844. It is clear, therefore, that for part at least of the waste, the case is within the very letter of the statute. We might further insist that the statute merely provides a remedy for the enforcement of rights previously in existence — and that it applies equally to cases occurring before, and those occurring after the passage of the act, according to the principle settled by this court at its present term, in a case from Bedford, upon the construction of the usury act of 1846.
    The right to the possession of the land which is given to the purchaser by construction under the act of 1820, is peculiar to the legislation of this State. In New York the purchaser is not entitled to a deed from the sheriff during the time allowed for redemption. Bissel vs. Payne, 20 Johns., 3. Evertson vs. Sawyer, 2 Wend., 507. No case has been found precisely analogous to the one before the court. But the instance of a sale of property with right to re-purchase already mentioned — where the law would certainly hold the purchaser responsible to the vendor for wilful waste — may be cited as sustaining the action now brought. So also it has been held, that a wife may bring an action of trespass on the case against a purchaser of her real estate claiming under the husband, or against a credhorof the husband who has levied an extent upon the husband’s interest in his wife’s realty, and recover damages for waste committed. Babb and wife vs. Perley, 1 Greenleaf’s Rep., where this point is decided. Such cases may be considered as sufficient in point of authority, to authorise the plaintiff to bring his present action for waste, without resorting to the construction of the act of 1320 as contended for, and without calling in the aid of the act of 1844.
    Houston, for the defendant.
    
      Nicholson, for the plaintiff.
   Tujeiley, J.

delivered the opinion of the court.

These are actions brought by James Kannon against William Pillow, to recover rent and waste, under the following circumstances. Kannon owned a tract of land, which was sold under execution and purchased by Pillow. Pillow at the time of his purchase, took from the sheriff a deed for the land, and went into immediate possession; about six months before the two years allowed by law for the redemption of land, sold under execution, Kannon redeemed the land from Pillow; and the question now is, can he recover rent from him for the time he was in possession, and damages for waste committed during that period;5 And we are constrained to hold, upon principle, that he cannot.

We do not think that the relation of the owner and purchaser of a tract of land sold under execution is that of mortgagor and mortgagee under the provisions of the act of 1820, ch. 2, allowing the period of two years for redemption. The purchaser becomes the absolute owner of the land, and receiving a deed, and entering into possession, is entitled to the rents and profits, and the former owner has nothing but the naked right of redemption, which is irretrievably lost, if it be not asserted in the *time and manner prescribed by law.

There is no similarity between such an estate, and that acquired by a mortgagee; it can be better assimilated to the sale of land, with the liberty of re-purchase; in which case, the ven-dee, if he go into possession, cannot be made liable for rents and profits, because the land is absolutely his, until the condition be performed, by which it reverts to the former owner.

The case of Sheratts vs. Firestone, we are strongly of the opinion, was improperly decided; but be that as it may, the case is not in all respects similar to this — Firestone had received no deed for Sheratts’ land, which Judge Robert Whyte held, was necessary, notwithstanding Sheratts’ agreement, to enable him to recover the rent; and we, therefore, think his opinion is in accordance with our view of this case.

Upon the same principle, we think, it follows necessarily, Kannon can maintain no action for waste committed by Pillow, anterior to the time of the redemption.

But we think, that in as much as Kannon redeemed the land six months before the two years expired, he was then entitled to the possession of all the land, upon which Pillow had not a growing and ungathered crop, and that for this he is entitled to a reasonable rent for the time he was kept out of the possession after the redemption; it was error not to have allowed him this, for which the judgment in the action for rent will be reversed, and the case remanded for a new trial.

The judgment in the action for waste will be affirmed.

Note. — The following are opinions delivered in the case of Sheratts vs. Firestone. The case was decided many years ago at Knoxville and the opinions are deemed worthy of preservation as part of the judicial investigations which have taken place on the subject of the redemption law of 1820.

Whyte J.

The only question between the parties in this case is, the item in the account allowed by the Chancellor in favor of Sheratts for the rent, from the time of the sale of the land under the execution against him, at which Firestone became the purchaser, and its redemption under the act of 1820, c. 11.

It is contended for Firestone that he became by his purchase at the execution sale, the owner of the land, and as such was entitled to the rents and profits until redemption; he therefore claimed rent from Sheratts, the debtor in the execution sale, who agreed to pay him $50 per annum; and he, Sheratts, thereupon continued in possession and enjoyed the same.

The act of 1820 c. 11, says, that any debtor whose interest in real estate may be sold under execution, at any time within two years after such sale, upon payment &c. &e. may redeem the interest that may have been sold; and upon such payment it shall be the duty of the then claimant to recon-vey said interest to the debtor &c. It is argued for Firestone, the purchaser under the execution, that under this act, and by force thereof, he took the freehold, or other legal estate that was vested in the execution debtor; and that such effect of the act is manifested by the expression in it, which says, that upon payment, &c. &c. it shall be the duty of the claimant to reconvey said interest to said debtor; that the words “to reconvey,” assume the position, and principle, that the interest of the debtor passed by the sale, and that this operation must of necessity be allowed to the act, as well in conformity to its spirit, as its letter. I cannot perceive any thing expressed or ever intimated in this act to change the law upon execution sales, and to introduce a different doctrine from that heretofore held, and so often to be found noticed and recognised in judicial decisions. That doctrine is, that a sale by execution is the substitute of a sale by the party himself, the debtor in the Execution. -And to make a valid sale or transfer of property which the term, execution sale means, from one man to another, such execution sale or transfer must be by deed in writing by virtue of the acts of assembly of 1715, c. 38, s. 5, and 1801, c. 25, s. 1.

When a sale or transfer of real estate is effected by execution, it is called a statute conveyance, because it is founded upon, or prescribed by statute; and to render it complete four requisites are necessary; a judgment against the debtor, a levy on the real estate, a sale by the Sheriff, or other proper officer, and a deed of conveyance by the officer to the purchaser — all these must exist and concur to make a valid transfer of the debtor’s interest in his real estate to the purchaser or highest bidder at the sale or auction, and when in our acts of assembly, Sheriff’s sale or execution sale, is spoken of, and the subject matter of it is real estate, all these are comprehended and understood to be existing. Therefore, when this act of 1820, c. 11 speaks of a debtor’s interest sold at execution sale, and purchaser at execution sale, it has reference to, and means a regular sale under our acts of assembly as above noticed; embracing all the requisites necessary to constitute and effectuate a transfer of the property to the purchaser; a very important one of which requisites is the deed; and to which the previous ones are only auxiliary. The two first, the judgment and levy, specifically fix the lien of the plaintiff’s claim to the subject matter, or object of the execution, the sale or auction designates the purchaser or alienee, but it belongs to the deed to complete tlie tranfer and attain tlie end of the law: by divesting the seizin of the execution debtor in the case of a freehold or in the case of a less estate, the interest thereof, and passing the same to the purchaser. The difficulty caused by the want of a Sheriff’s deed to the purchaser, Firestone, in the present case was anticipated by the counsel, and it was endeavored to be obviated by recourse to the principle in equity, that the Court will consider that to be done, which ought to have been done. I question much the propriety of the application of this principle, to supply the defect of an execution sale in this State, where an execution operates on legal rights and interests; not on such as are equitable. In the State of New York, and perhaps in some other States where some equitable rights or interests are by statute made the subjects of an execution; there may be perhaps statu-table grounds for such application: but I apprehend that here the purchaser at an execution sale, on the want of a deed, would be met by the maxim of cavea¿envptor, and be left to his redress upon a proper proceeding for the purpose of perfecting his legal title. But be this as it may, the above principle cannot have any effect in the present case to supply the want of a Sheriff’s deed, for no reason appears why the party purchased at the Sheriff’s sale, and did not take a conveyance; it does not appear that the Sheriff would not give one, nor does it appear that the Sheriff was even asked for one; under such circumstances exhibiting a defective title through the mere default of the party, he cannot be heard claiming a right to have the defect overlooked, or considered as non existing.

But admitting it to be correct, that upon a proper proceeding in equity, he might compel a deed from the Sheriff; on which I have no opinion, that would be of no avail on the present occasion which requires a title perfected by a Sheriff’s deed, to have vested in him, Firestone,'the seizin and interest, which as a claimant of the rents and profits of land sold under the execution, he indispensably required. Firestone therefore, having no seizin, or other legal interest by virtue of his being purchaser or highest bidder at the execution sale, for want of a conveyance by the Sheriff, had no right to the rents and profits, of the land of Sheratts; and therefore no error in the decree of the Chancellor.

If, in the present case, the Sheriff had made a deed for Sheratts’ land to Firestone, the purchaser, and by that means completed the statutable conveyance; the question would have been made, which was argued with so much ability at the bar; but as that question is not presented by this record, it will come more properly to be examined when it is so presented.

Peck J.

In the record before us the question is raised — Do the rents arising from real estate purchased at Sheriff’s sale, go to the purchaser, or is it the right of the owner of the estate whose interest has been sold, but who under the act of 1820, ch. 11 s. 2, may redeem, to retain the same—

The second section of the act gives the right to redeem within two years -on payment of the money bid, and ten per cent interest per annum: true it uses the expression that the purchaser shall reconvcy, which implies that the Sheriff may convey to the purchaser before the end of two years within which time the debtor may redeem — still, the only charge or incum-brance or lien given by the letter of the act, is the money bid with ten per cent — and the concluding part of the section is imperative “and upon payment or tender thereof, (the money bid and 10 per cent) it shall be the duty of the claimant to reconvey said interest to the debtor” &c. This act introducing new rules to be observed touching estates thereafter to be sold by Sheriffs, must be sensibly construed — if there is no ambiguity in wording the act, it is safest to follow the letter. In saying that the 10 per cent with the money bid and costs and charges included is all that the law allows to the purchaser at Sheriff’s sale, we not only follow the act in its terms, bitt we make it consistent with other statutes, the policy of the country, and as I conceive, the rules of equity — in the first place 10 per £ent is above the common or legal interest allowed by law in dealings between man and man — it might be a matter of speculation with the political economist to search for the cause why it is that the Courts of Justice are required, to hold in one hand the statutes against usury in dealings — amply armed with power to restrain and punish it even by a criminal prosecution, and at the same time are called upon to exact a fixed usury in so many cases following the Judgments of the tribunals of justice. While the constitution provides that courts shallbe open to the injured, and every man for the wrong done him shall have right and justice — and while writs are provided in the same instrument by which men may be enabled to resort to the courts, and the ministers there are by the laws armed with mercy on the one hand to such as may be oppressed by usury — and with the terrors of usury in the other to such as under the constitution have a right to and do travel into higher tribunals for the attainment of justice. Let others treat this as they may, the courts follow the law restraining themselves with this rule, that where a case does not come expressly within the jjrovision of the statute, usury is taken as a penalty and therefore not given. Try the question before us by this rule: here it is said that rent results from a vesting of the legal title by the deed of the Sheriff, not from the express letter of the act — nevertheless the same act gives a penalty to wit, the 10 per cent, and the purchaser bids for and takes the estate with a knowledge of his interest in or lien thereon; but shall we add an additional penalty— shall we give a double compensation to the purchaser, the one by following the letter of the act of assembly, the other and in most instances the heaviest penalty by construction or legal intendment. It cannot be, for it isthe province of courts of equity to lean against penalties, not to create and enforce them.

Equity does enough in all conscience, when it, by an act of the Legislature permits one man by the process of a court of justice to coerce from the tempest driven debtor 10 per cent on his money advanced and that secured by real estate at his own valuation. While in the same tribunal the common dealer in money is restained strictly to Ms six per cent. When the act before ns was passed, the policy was to put it in the power of judgment debtors to save their estates, and while solicitude was felt, that they should have power to do so, the interest of the purchaser was not overlooked. Common dealings in the country, nay, the decrees of foreclosure at every term of our Courts of Chancery, prove that money may be vested at six per cent, in landed securities. While these facts were before the legislature, and now in view of this court, can we suppose it possible that it was ever intended by the law makers to encumber the debt- or with a rent on the land one day, which land might be redeemed the next; add to these considerations the embarrassment which would arise in case of disagreement about the amount of rent — -must the question be settled by a suit, and must the debtor to whom facilities are given to secure his estate, be subjected to cost and expense, touching the very rent which it is most natural to suppose was intended to be used to raise the funds with which to redeem.

The third section of the act assists in coming to a proper conclusion on this point. By this section another creditor may redeem from the purchaser, paying to him the money bid and 10 percent., on the doing of which, “it shall be the duty of the purchaser, or one claiming under him, to convey such interest to such creditor” — and it will be seen by looking to the 5th sec., that as many redemptions may take place as there are creditors. Now, it cannot be supposed that he who redeems last, shall have all the rent— if the rents pass, they should go rateably, and be apportioned according to the time each may have had his. right vested. The confusion this would lead to, is one argument against letting in an intendment, calculated to be productive of embarrassment, if not litigation.

While the policy of rendering lands liable for the satisfaction of debts is' fully recognized by the courts, still the manner of reaching them is taken with strictness. The modes of sales and transfers are the subjects of legislation. Possession is not delivered, but a deed by which possession can be obtained — admit, for the sake of argument, that the deed may be taken before the expiration of the two years, and admit that an ejectment might be brought on the deed for the possession of the land, and on recovery an action for mesne profits — still the deed, the action of ejectment, and the consequent action for mesne profits would in effect all be contingent. A redemption by the execution debtor, or by any creditor, would change the sit-uotion of parties, and overthrow the title and action founded on it. Could an action for the rent lie without the recovery in ejectment? I answer no— for there is no contract, express or implied, on which to found the action; but a much stranger reason arises out of the fact, that in all these provisions, the Legislature chose to be silent about rent purposely, because they never intended to allow any to the purchaser. The act of New York is not before us; how far a case there, and the one before us might be found parallel, I cannot pretend to say. That act, however, had the same policy in view which produced the passage of the one we are construing, and in Now York', the rent is by decision of their courts given to the judgment debtor, 2Q John. R. 3. The case of Hawkins vs. Jemmison, Martin & Yerger, does not effect the case before us.  