#### Van Camp vs. Peerenboom.

Where a person having a contract for the purchase of land, under which he had gone into possession, conveyed the land by warranty deed with covenant of seisin, it was *held,*that his vendee acquired an interest in the land which was subject to the lien of a judgment against him, and to a sale on execution, under sec. 5, chap. 102, and sec. 9, chap, é, R. S., 1849.

APPEAL from tbe Circuit Court for *Outagamie*County.

Tbe complaint in tbis case alleged that on tbe 9tb of August, 1858, tbe plaintiff and defendant entered into a written contract, by which tbe plaintiff, *Francis Van*Gamp, in consideration of $450, of which sum $8 00 were paid in band, agreed “ to transfer, as soon as be could get bis deed from the Fox & Wisconsin Improvement Company, in full title thereof,” a certain piece of land in Outagamie county; that tbe plaintiff received bis deed of tbe land from said company about tbe first of September, 1858, and thereupon offered the defendant a deed of it, but tbe defendant, who was in possession, refused to receive the deed or to make any further payment on tbe land. Tbe complaint also stated that in June, 1858, tbe plaintiff let the bouse situate on said land to tbe defendant until tbe 1st of May, 1859, at a small rent payable monthly, and that tbe defendant still occupied the bouse and claimed to bold it and said land adversely to tbe plaintiff. Prayer, that tbe defendant pay the sum of $442, with interest, within such time as the court might direct, or be forever barred of all right to tbe land by virtue of tbe contract, and be ordered to deliver possession thereof to tbe plaintiff, &c. The defense was, that tbe plaintiff, when be offered the defendant a deed of tbe land, was not able to give him a perfect title; and tbe answer al*66leged in substance tbe facts stated below in tbe finding of tbe circuit judge. Tbe answer also admitted that tbe defendant leased tbe bouse on said premises from tbe plaintiff, as stated in tbe complaint, but alleged that at tbe time of tbe execution of tbe contract for tbe purchase of tbe land, tbe lease was amended by consent of parties, and it was mutually understood that tbe “ defendant should occupy tbe land without rent, until tbe title thereto should be perfected in tbe defendant.”

Tbe papers now on file in this court do not show when tbe suit was commenced; but tbe brief of tbe attorney for tbe appellant states that it was commenced May 20th, 1859.

On tbe trial, tbe circuit judge found tbe following facts: “1st. Tbe plaintiff contracted with tbe Eox & Wisconsin Improvement Company for tbe land described in tbe complaint, previous to tbe deeds hereafter mentioned being given, and was in possesssion under said contract. 2d. On tbe 6th of November, 1857, tbe plaintiff conveyed tbe land by warranty deed to Anselmus Van Camp. 8d. On tbe 9th of January, 1858, Peter Hendricks recovered and docketed a judgment in this county against said Anselmus. 4th. On tbe 13th of August, 1858, Anselmus reconveyed tbe said premises to tbe plaintiff by warranty deed, recorded tbe same day. 5th. On tbe 9th of August, 1858, tbe contract set out in tbe complaint was executed. By this tbe plaintiff agreed to convey tbe premises to tbe defendant as soon as be should get his deed from tbe Eox & Wisconsin Improvement Co. 6th. On tbe 12tb- of October, 1858, said Hendricks caused execution to be issued on said judgment against tbe jnoperty of said Anselmus, and by virtue thereof tbe sheriff of said county levied on and sold pursuant to law tbe said land as tbe property of said Anselmus. 7th. In September, 1858, said plaintiff received bis deed from tbe Eox & Wisconsin Improvement Company, and soon after offered to give tbe defendant a deed of said land on bis paying tbe contract price therefor. Tbe defendant refused to pay therefor, for tbe reason that said judgment was a lien and incumbrance on said land; and be was always ready and willing to pay for said land and take a deed of tbe same *67whenever said judgment should be satisfied and said incum-brance removed.” And as conclusions of law, the held, that a party having possession of land under a contract to purchase, has such an estate as is bound by the lien of a judgment; that by the deed of November 6th, 1857, Ansel-mus Van Camp acquired all the title which the plaintiff had under his contract of purchase with the Eox & Wisconsin Improvement Co.; that the plaintiff was estopped by that deed from denying that his title was a perfect one; that the judgment in favor of Hendricks was a lien on Anselmus Van Camp’s estate in the land; and that the plaintiff was unable to make the defendant a good title at the time of the decree; and therefore dismissed the complaint. The plaintiff excepted to the findings of fact, except the second, and to the conclusions of law.

*B. P.*Eaton, for appellant,

contended that the relief sought by the complaint was a strict foreclosure, and that the defendant, holding possession derived from the plaintiff, could not question plaintiff’s title. 7 Bac. Ab., 157-8; 6 Conn., 198; 12 Wend., 57. By his contract for the purchase of the land the defendant recognized the plaintiff’s title; and was a mere tenant at will not entitled to notice to quit. 1 Caines’ R, 444; '2 id., 174, 215; 3 Johns., 223, 499; 4 id., 23, 210, 230; 7 id., 157, 186; 14 id., 224; 7 Cow., 637, 717, 747; 1 Wend., 418; 7 id., 401; 5 id., 246. 2. The counsel for the respondent, while admitting that there was no proof to sustain the first finding of the court as to questions of fact, claim that the fact so found is deducible from the pleadings. But there is nothing in the complaint inconsistent with the supposition that the plaintiff at the date of his deed to Anselmus, was a mere squatter on the land. If so, his deed to Anselmus conveyed no title or interest in the land which was liable to the lien of a judgment or to sale on execution.

*Jewett & Svdd,*for respondent:

1. There can be no doubt from the proof, as to the facts found by the court, except, perhaps, as to the single proposition that the plaintiff had contracted with the Eox & Wisconsin Improvement Co. for the purchase of the premises in *68controversy. But that fact is deducible from the pleadings. The contract set out in the complaint implies it, and the answer avers it. 2. Under the statutes in force in January, i 1858, the interest of a person in possession of land under a ' contract of sale was subject to the lien of a judgment against him, and to sale on execution. R. S., 1849, 'chap. 102, sec. 5; 2 N. Y. Rev. Stat., Revisers’ 8d Ed., p. 454; 18 Johns., 94; 9 Cow., 78. 3. The complainant must do equity before he can demand it. Under his contract the vendee had the right of possession of the premises, and on paying the consideration, the right to a deed conveying full title. He should not be debarred of those rights through the negligence of the vendor, nor compelled to take an imperfect title at the hazard of a lawsuit. 5 Paige, 299; 7 id., 77; 10 id., 386.

May 22.

*By the*Court,

Cole, J.

Whatever interest the appellant had in the premises mentioned in the pleadings, was undoubtedly conveyed to Anselmus Yan Camp by the deed of November 6th, 1857. At this time it appears he had a contract for the purchase of the premises of the Eox & Wisconsin Improvement Company. He had gone into possession of the land under this contract, and for aught that appears in the case, might have paid the full amount of the purchase money. Still, all of his interest in the land under this contract, whatever it was, he conveyed to Anselmus Yan Camp by the above mentioned deed, which contained a covenant that he was well seized of the premises, and also covenants of warranty of title. Under these circumstances there is no room for doubt that Anselmus had such an interest in the premises as to subject them to the lien of the judgment recovered against him by Peter Hendricks on the 9th of January, 1858, and to a sale on execution on that judgment. Eor the statute then in force made a judgment of a court of record a lien upon all lands, tenements, real estate and chattels real belonging to the judgment debtor in the county where the judgment was rendered or a transcript thereof filed, and subjected such property to sale upon execution. Section 5, chap. 102, R. S., 1849. And in the .chapter pre*69scribing wbat rules should be observed in tbe construction of statutes, it was declared that the words “land” “lands,” and the words “real estate” and “real property,” should be construed to include lands, tenements and heredi-taments, and all rights thereto and interests therein. Section. 9, chap. 4, R. S., 1849. So that under those statutes the judgment of Hendricks bound the land, and Anselmus "Van Camp’s interest therein was sold under the execution. The purchaser at the sheriff’s sale took whatever interest Ansel-mus had in the premises. It follows from this that when the property was reconveyed to the, appellant, in August, 1858, it was thus reconveyed subject to that judgment. The appellant therefore could not give a good title to the premises which he sold to the respondent, under the contract of August 9th, 1858, without discharging the Hendricks judgment against Anselmus, or redeeming of the purchaser at. the sheriff’s sale, neither of which things has he done. As a matter of course, he ought not now to recover of the respondent the purchase money for land to which he could give no title. The respondent states in his answer that he will pay the purchase money whenever the appellant will make him a good title, and this is all he should be required to do.

It is objected by the counsel for the appellant that it does not appear that his client had any right or [interest in the land • at the time he executed the conveyance to Anselmus. But it is distinctly alleged in the answer that a long time previous to the execution of the contract set forth in the complaint, the appellant had contracted with the Eox & Wisconsin Improvement Company for the purchase of said premises, and that afterwards he conveyed them to Anselmus ; and this averment is not denied. It is but fair to assume that it was the interest which he acquired under the contract with the Eox & Wisconsin Improvement Company, which was conveyed to Anselmus. And in view of the clear and distinct provision of our statutes before cited, it seems unnecessary to elaborate upon the point as to whether the judgment against Anselmus became a lien upon the premises thus conveyed. The statute made the judgment a charge *70upon real belonging to Anselmus at tbe time of its rendition, and tbe words “ real estate ” are very compre-bensive, sufficiently so to include bis interest acquired by tbe conveyance from tbe appellant. In New York it bas been beld that even possession of lands is an interest wbicb may be sold on an execution against tbe possessor. *Klein vs. Graham,*3 Caines’ R, 188; *Malin vs. Garnsey,*16 Johns., 189; *Griffin vs. Spencer,*6 Hill, 525. Also that a person in tbe possession of land under a contract for tbe purchase and sale of it, bad an interest therein wbicb might be sold on execution. *Stone vs. Scott,*18 Johns., 94; *Cary vs. Parker,*9 Cowen, 73; *Ten Eyck vs. Walker,*4 Wend., 462. It was subsequently enacted in that state that tbe interest of a person bolding a contract for tbe purchase of lands should not be bound by a judgment or sold on an execution, but that tbe remedy against property thus situated should be in equity. 1 N. Y. Rev. Stat., 744, sec. 4; *Talbot vs. Chamberlin,*3 Paige, 219; *Grosvenor vs. Allen,*9 id., 75; *Kellogg vs. Kellogg,*6 Barb. (S. C.), 116; *Sage vs. Cartwright,*5 Seld., 49; *Moyer vs. Hinman,*17 Barb. (S. C.), 137; *Bigelow vs. Finch,*id., 394; *Mead vs. Gregg,*12 id., 653. See *also Douglass vs. Huston et al.,*6 Ohio, 156; *Baird vs. Kirtland,*8 id., 21; *Huntington vs. Rogers,*9 Ohio State, 511.

It was insisted-that tbe judgment against Anselmus Yan Camp was invalid on account of some irregularity in tbe proceedings for obtaining it. We fail however to discover any such irregularity in tbe suit of *Hendricks vs. Van Camp*as would in tbe least affect tbe validity or sufficiency of that judgment.

Tbe conclusion at wbicb we have arrived is, that tbe judgment of tbe circuit court must be affirmed.