Judgments: Effect of redemption upon lien of unsatisfied judgment.-In Matter of Hunter v. Seery, 206 App. Div. 19 (1923), land of a non-resident debtor was attached, and, upon service by publication, judgment was rendered for $2,306.39. At the judicial sale the land brought enough to apply only $14.75 on the judgment after deducting expenses. The judgment and also all the interest obtained by the purchaser of the land at the judicial sale were assigned to Hunter, the petitioner. By mesne conveyances the equity of redemption came to Eichold, and he redeemed from Hunter, who thereupon caused a second execution to be issued on the original judgment directing the sheriff to sell the land a second time. Upon the sheriff's refusal to execute the writ this mandamus proceeding was brought against him in which Eichold intervened. Without considering whether judgments quasi in rem stand on any different footing from judgments in personam,' the court held that where the land sold for a sum which did not satisfy the judgment, the redemption by a subsequent grantee of the owner from the purchaser at the execution sale restored the lien of the judgment, and that the land might be sold again to satisfy the judgment. The decision turned upon a construction of section 726 of the Civil Practice Act, substantially a re-enactment of a very old statute, and one found in many states. It reads "Effect of redemption upon sale. Upon payment being made by a person entitled to redeem real property, as prescribed in the last two sections, the sale of the property redeemed, and the certificate of the sale, as far as they relate thereto, become null and void.”

There have been comparatively few cases in New York upon the effect of the redemption of land upon the lien of the judgment. In Wood v. Colvin, the court first placed its construction upon this statute. It held that since by the terms of the statute the sale became "null and void" after redemption "there was no longer anything in the way of a second sale of the land for the balance remaining due on the judgment." The case of Titus v. Lewis held that "by the very terms of this enactment, the redemption under the first sale rendered that sale null and void, and, by necessary consequence, there having been no sale in law there was no extinguishment of the judgment lien upon the premises. The judgment was merely paid and satisfied pro tanto; but remained a valid lien for the unpaid balance." All the succeeding cases in New York have followed the construction of the statute laid down in these two cases.

The purpose of this note is to inquire whether the construction which has been placed upon the statute is the one which the legis

'The judgment in this case, to the extent that it was not satisfied by the sale, was a deficiency judgment. For what purposes, if any, there may be a deficiency judgment upon service by publication in actions quasi in rem, is a question lying outside the scope of this note.

25 Hill (N. Y.) 228 (1843).

'Supra, n. 2, at p. 230.

43 Barb. (N. Y.) 70 (1848) at p. 72.

'Bodine v. Moore, 18 N. Y. 347 (1858); Kempf v. Biers, 176 App. Div. (N. Y.) 269 (1916); Thompson v. Thompson, 98 Misc. (N. Y.) 310 (1917).

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lature had in mind when it passed it, and also to point out some of the results which this construction of the statute necessarily lead to. As pointed out in the instant case, great hardship was caused in earlier times by the sale of land under execution, without any right of redemption, for lands sold at execution realized only a fraction of their real value. The redemption laws were consequently passed for the benefit of the judgment debtor. The section which is now 726 of the Civil Practice Act, was probably passed to avoid any attempt on the part of the purchaser at the execution sale to claim. any title to the land after it had been redeemed. But it has been construed to give the judgment creditor a right which he would not ordinarily have, for the court admits that ordinarily the effect of a sale upon execution is to extinguish the lien of the judgment. That the legislature did not intend to give the judgment creditor any new rights seems to be borne out by section 735 of the Civil Practice Act which provides "the judgment creditor by virtue of whose execution real property has been sold cannot avail himself of the judgment upon which the execution was issued to redeem the property;" The reason for this conclusion is apparent when we assume a case where land is sold and an outsider purchases it for less than its real value. If the judgment debtor makes no effort to redeem the property, it would seem that if the purpose of the legislature was to give a new remedy to the judgment creditor, they would allow him to redeem. But the legislature has expressly provided against it, thereby indicating that its intent was that the lien of the first judgment should be entirely wiped out by the sale under execution. The purpose of the redemption statute was not to penalize the judgment debtor, but to help him. Then why should the original lien be regarded as surviving against the judgment debtor or his assignee, when it does not survive against an outside purchaser who might be buying the land for a small fraction of its value? It must be remembered that the judgment creditor is always in a position to protect himself, by bidding the fair value of the property sold at execution.7

Must the evident purpose of the statute be defeated because of the language declaring that upon redemption the sale and certificate of sale shall become null and void? The argument of the cases cited, that the necessary consequence of treating the sale as null and void is to leave the lien of the judgment undisturbed, proves too much. An undisturbed lien is one for the full amount of the original judgment. This was the only lien before sale. The concession that the judgment, and consequently the lien of the judgment must be considered as having been reduced by the proceeds of the sale is a concession that the sale cannot be treated as null and void for all purposes. If not for all purposes, then for what purpose? The most natural answer would seem to be, for the purpose of affecting the title of the person redeeming. If it is consistent with the words "null and void"

"Heyson v. Deygert, 8 Johns. (N. Y.) 332 (1811); Ex parte Stevens, 4 Cow. (N. Y.) 133 (1825). "Clayton v. Ellis, 50 Ia. 590 (1879).

to permit the lien to be affected by reducing it, it is equally consistent, and more in keeping with the general purpose of the legislation, to permit it to be extinguished altogether, as is the case under sales where there has been no redemption. In the normal case the sale extinguishes the lien and vests title in the purchaser. This title is derived from the sale. The title of one redeeming is not derived from the sale, but in spite of it. The title through the sale must be destroyed to make it effective, as there cannot be two co-existing titles. That title is destroyed by declaring the sale on which it depends "null and void" and the purpose of the words has been accomplished. It is no more logical to say that the destruction of a sale revives the lien which the sale extinguished than to say that the destruction of a lion restores the calf which it has eaten. Lien and calf alike were dead before their destroyers were in turn destroyed. Resurrection of the lien is not in harmony with the placing of title in the person redeeming, and words of destruction ought not be given such quickening effect.

It may be that if the judgment is one in personam, and the judgment debtor redeems, that upon the issuance of another execution a new lien will attach to the same land, not because it is the same land, but because upon issuance of execution against a judgment debtor a lien attaches upon all lands owned by him in the county. That is one of the incidents of ownership of land. It may be urged that the elimination of the second execution and second lien is but a short cut to the same result, and that there is no good reason for multiplying procedural steps. Perhaps that is true where the debtor redeems. But he need not redeem. The equity of redemption, which the redemption statutes have seen fit to give him, is a thing of value, not subject to the lien of the original judgment, and may be sold. If the incident of ownership in fee in the judgment debtor works against the purpose of redemption, it may be avoided by passing that incident for value to some one else. The "short cut" accomplished by the construction above criticized is not limited to reaching property owned by the judgment debtor. It reaches the property of his grantee.

What effect must the construction that has been put upon the statute have upon redemption in general? In any case where there has been a large judgment recovered, and the value of the land is less, there will never be any redemption. If the judgment debtor or his grantee should redeem, according to the doctrine of the New York cases, the land immediately becomes liable to a resale for the balance of the judgment due. This process could be repeated indefinitely if the judgment debtor would keep on redeeming. Carrying the doctrine to its logical conclusion, it would allow a judgment creditor to sell the same land over and again upon the original judgment and recover a sum far in excess of the total value of the land, if the judgment debtor were foolish enough to keep on redeeming. The result of the construction put upon the statute is to wipe out the whole force and effect of the statute concerning redemption, by judicial interpretation. Wherever there is a large judgment outstand

ing against a piece of property less valuable than the amount of the judgment the creditor can say, "Redeem at your peril."

If this construction were necessary in order to protect the judgment creditor and prevent the debtor from escaping without paying his debts, there would be no quarrel with the court. But the judgment creditor can always protect himself by buying in the property at its fair value.

Milton Weiss.

Libel: Right of municipality to sue.-The City of Chicago, in the case The City of Chicago v. Tribune Co., 139 N. E. (Ill.) 86 (1923), brought an action on the case for libel against the newspaper company, defendant. The plaintiff alleged that its credit and financial standing were injured, through publications in the defendant's paper which charged that the city was "broke" and on the verge of bankruptcy.

The case presents the novel problem of a city's right to sue for libel, but one which can be settled by established principles of law. The court finds for the defendant, placing its decision on the principle involved in the constitutional guarantee of freedom of speech,' which the court considered the substantial question in the case. While, generally, the doctrine of freedom of speech will dispose of a case of this kind, yet under certain circumstances there may be occasion for consideration of the extent of this privilege.

The development of our civilization can be traced in the long struggle for freedom of speech against the attempt to throttle free expression of thought by the charge of libel. The action of civil libel, although as effective as criminal libel to curb free expression of thought, has not hitherto been resorted to by governments or divisions thereof. Unhampered freedom of expression is regarded essential to the well-being of our government. The time "when kings could do no wrong" has passed, and now governments and individuals are regarded as fallible. The right to criticise the government, whether federal, state, or local, is unquestioned. The only question for consideration is the limit to be placed on this right.

"The liberty of the press consists, in my idea, in publishing the truth, from good motives and for justifiable ends, though it reflects upon the government, on magistrates, or individuals. If it be not allowed, it excludes the privilege of canvassing men, and our rulers." Because of the recognized dependence of the public upon the press as an agency by which to stimulate and reflect public opinion, judges and juries have allowed it great latitude in criticizing fearlessly matters of public concern. A city necessarily subjects itself to close scrutiny

'Illinois, Const., art. 2, sec. 4.

Cooley, Constitutional Limitations (7th ed.), p. 613.

'Works of Alexander Hamilton, p. 339, giving his view of liberty of the press, stated by him as attorney in the case of People v. Croswell, 3 Johns. (N. Y.) 337 (1804). "This is substantially the doctrine of fair comment on matters of public interest, which has come to be accepted both in England and in this Country." Burdick, The Law of the American Constitution, p. 362.

"Odgers, Libel and Slander, p. 194.

by the press, with all the freedom which the exigencies of the occasion demand, and without fear by the newspaper of vexatious litigation. On the other hand, the press should not be allowed to inflict injuries upon a city with impunity under the pretense of discharging some duty to themselves or to society, when the motive is actually malicious.

In strict law the liberty of the press is no greater and no less than the liberty of every individual.5 Both are subject to the same test in determining what is privileged. "The doctrine of privilege rests upon the principle of public policy. That is to say, the public good outweighs all private interests and what would under the circumstances be libelous, is excused if it can be brought within this exception to the general law." The defense of privilege is lost, unless the words complained of are: (1) a comment and not the assertion of some matter of fact, (2) a comment on some matter of public interest, (3) a fair comment, (4) a comment published without malice."

The question of privilege or no privilege is entirely one of law for the judge, and it seems reasonable to infer that the occasion may arise when a publication concerning a city could be clearly in excess of privilege. For instance, if a newspaper falsely published that a city did not have a penny left because of mismanagement, it would seem an abuse of fair comment. It is clear upon the authorities, also, that a man may not invent his facts and then comment upon them, and thereafter enjoy immunity upon the ground that, his facts being assumed to be true, the comment is fair.10 Fair comment must never consist in the assertion of fact," and "*** the distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, ***. It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, [or a city government], 12 and quite another to assert that he [or it]13 has been guilty of particular acts of misconduct."14 Exaggeration, however, does not make the comment unfair, provided it is no more than honest criticism, 15 and does not go further than the occasion or conduct warrants.16

Furthermore, if a publication, criticizing a city government, shows

'Palmer v. Concord, 48 N. H. 211 (1868); Reg. v. Gray, (1900) 2 Q. B. 36, 40. "Sommers, Newspaper Libel, p. 61.

"Odgers, Libel and Slander, p. 196.

"While the question of libel or no libel, malice or no malice, are matters of fact for a jury, the question of privilege or no privilege is entirely one of law for the judge. That is to say, it is exclusively for the judge to determine whether the occasion on which the alleged defamatory statement was made, was such as to render the communication a privileged one.' Newell, Newspaper Libel, quoted by Sommers, Newspaper Libel, p. 61.

'Hubbard v. Allyn, 200 Mass. 166 (1908); Joynt v. Cycle Trade Pub. Co., (1904) 2 K. B. 292, at p. 294.

10Crows' Nest Pass Coal Co. v. Bell, (1902) 4 Ont. R. 660.

"Patterson v. Edmonton Bulletin Co., (1908) 1 Al'bta R. 477.

12 Words in brackets are writer's.

13 Supra, n. 12.

14Davis and Sons v. Shepstone, 11 App. Cas. 187 at p. 190 (1886). 15Cherry v. Des Moines Leader, 114 Ïa. 298 (1901).

16Cooke v. O'Malley, 109 La. 382 (1902).