The First National Bank of Mt. Vernon et al. v. Sarlls et al. It will not be contended by any one that the establishment of fire limits will justify the condemnation and removal of wooden buildings previously constructed, simply because they are wooden buildings. Before their destruction or compulsory removal can be justified they must become nui sances. Yet this ordinance, by forbidding repairs, would accomplish by indirection what could not be done directly. It would first compel the owner to allow it to become and remain a nuisance, and then punish him for so doing by destroying or removing his property. We have not been able to find an authority anywhere which would sustain appellants' position in this case. The case of Brady v. Northwestern Ins. Co., 11 Mich. 425, cited by them, holds that under the charter of the city of Detroit, which expressly authorized the enactment of an ordinance forbidding repairs to wooden buildings, an ordinance which forbade such repairs without the consent of the common council, was valid. That case, in two essential particulars, differed from the case at bar: 1. The charter gave express authority to enact the ordinance; and, 2. The ordinance then in question was not. prohibitory, but allowed repairs when consent was first obtained of the common council. The opinion was by a divided court, Campbell, J., filing a strong dissenting opinion, holding the ordinance invalid as applied to a building. erected before its enactment, notwithstanding the char ter. The case of King v. Davenport, supra, was also a case where the charter of the city of Jacksonville conferred express authority, and the ordinance in question only forbade the building or repairing of buildings within the fire limits with other than fire-proof material. A party removed an old shingle-roof from her building, and replaced it with a new shingle-roof. Failing to remove it upon notice, the city marshal removed it. It was held that under the express authority conferred by the The First National Bank of Mt. Vernon et al. v. Sarlls et al. charter the ordinance was valid. The ordinance in that case, instead of prohibiting repairs, simply prescribed the material that might be used in making repairs. These two cases are the only ones cited by the appellants upon the question of the right to prohibit repairs, although many others are cited upon the general power of the city in the establishment of fire limits, and their power to prohibit the erection of buildings. Other authorities bearing upon the right to prohibit or to regulate repairs are as follows: Horr and Bemis Municipal Police Ordinances, p. 214, says: "The making of ordinary repairs to existing buildings can not be prohibited. They must amount to additions or material alterations. Re-shingling a building, for example, is an ordinary repair.” See, also, to the same effect, Regina v. Howard, 4 Ont. 377; Brown v. Hunn, 27 Conn. 332; Stewart v. Commonwealth, 10 Watts, 307. The case of Ex parte Fisk, 72 Cal. 125, was a case where an ordinance prohibited the alteration or repair of wooden buildings within the fire limits without permission or authority from the fire wardens. The court discusses, at some length, the provision that certain officers may grant permission to make repairs, and says: "It is clear, however, that a literal compliance with a regulation prohibiting the repairing of a wooden building might work, in some instances, useless hardships. The repair of a leaking roof or broken. window would be necessary to the comfort and health of a family, without enhancing the danger which the framers of the ordinance sought to provide against; and repairs of a more extensive character might be made to particular houses, standing in particular localities, without increasing the fire risks. And it is equally clear that no general rule could be established beforehand that would meet the emergencies of individual cases. Therefore the power to give relief in particular instances is conferred on certain officers; and it is not to be presumed that they will exercise it wantonly, or The First National Bank of Mt. Vernon et al. v. Sarlls et al. for purposes of profit or oppression." The court concludes. that the conferring of the discretionary power on the fire wardens was valid, and sustained the ordinance. The case of City Council, etc., v. Louisville, etc., R. R. Co., 84 Ala. 127, was a case where an ordinance prohibited repairing the roof of buildings within the fire limits with wood or other inflammable material. Like King v. Davenport, supra, it did not prohibit making repairs, but forbade the use of certain material in making them. In State v. Schuchardt, 42 La. Ann. 49, it is held that a legislative mandate, authorizing a municipal corporation to prevent the reconstruction in wood of old buildings within certain limits, does not include the mandate to prevent the repairing with shingles of the roofs of buildings originally covered with shingles. It will be observed, on examining these cases with others that more or less directly bear upon the question involved, that there is wide diversity in the interpretation given to the law in the different courts. Some go so far as to deny the power to interfere at all with the making of ordinary repairs. The weight of authority, however, is clearly with those cases which recognize the power of municipal corporations to regulate the making of repairs to buildings, and treat it as a legitimate exercise of the police power, but none of them go to the extent of sustaining the power of absolutely prohibiting repairs, as is sought to be done in this case. The complaint contains no averments showing the value of the building proposed to be repaired. It is possible that the part remaining will be of small value, and that this is a case where to repair will mean a substantial rebuilding of the structure. If so, however, it would have been easy to show such fact by specific averment. As it is, we are unable to say, from any averment in the complaint, that the proposed repairs, costing $300 or more, may not be very small, compared with the value of that portion of the building which Robertson et al. v. Van Cleave et al. remains, and that to restore or rebuild it may not be to preserve valuable property, and to prevent instead of create a nuisance. In our opinion the circuit court did not err in sustaining the demurrer to the complaint. Judgment affirmed, with costs. No. 14,842. ROBERTSON ET AL. v. VAN CLEAVE ET AL. TRUST AND TRUSTEE.-Cestui que Trust-Decres.-Where a trustee, who Held, also, that even if the judgment creditors were not parties to the EXECUTION.-Sheriff's Sale.-Judgment Creditor's Bid.-It is sufficient to make a sheriff's sale effective, in cases where the judgment creditor is the purchaser, if the amount of the bid is properly credited upon the execution, by his direction and authority. SAME-Holder of Sheriff's Certificate of Purchase.—Redemption from Mortgage Foreclosure. The holder of a sheriff's certificate of sale under execution on a judgment may redeem lands sold on a decree of foreclosure of a Robertson et al. v. Van Cleave et al. mortgage made by the judgment debtor, the lien of which is prior to that of the judgment. SAME.-Right of Redemption as Judgment Creditor.-Sufficiency of Application to Redeem, How Determined. -Such holder of a sheriff's certificate is entitled to redeem in the character of a judgment creditor, and not as owner, and hence the sufficiency of the application must be determined by section 772, R. S. 1881, which requires a statement specifying the amount and date of the judgment, and the amount due and unpaid. CONSTITUTIONAL LAW.-Obligation of Contract.-Statute Reducing Interest on Redemption from Mortgage.-A statute enacted subsequently to the execu tion of a mortgage, reducing the rate of interest which the purchaser might receive on his bid in case of redemption from ten per cent. to eight per cent., is not unconstitutional as impairing the obligation of a contract between the mortgagor and the mortgagee. NEW TRIAL.-As of Right.-Partition.—Where, in an action for partition, the question of title is directly put in issue and adjudicated, the unsuccessful party is entitled to a new trial as of right. EXECUTION. Right of Redemption.-Purchaser Under Execution.-Equitable Title.-Lien-Holder.-The title remains in the judgment debtor, not only until the right of redemption is lost, but until the power to redeem no longer exists, and the power to redeem ends only when the holder of the certificate demands a deed. The holder of a sheriff's certificate, who has taken no steps to obtain a deed, is no more than a lien-holder, regardless of the time which has elapsed since the sale. The expiration of the year allowed for redemption enlarges his rights by adding to his lien an equitable interest in the land sold. If he demands a deed, he acquires a legal title. Until he procures a deed he can not redeem as owner under section 768, R. S. 1881, but must redeem as a judgment creditor, or lien-holder, under section 772, R. S. 1881. OLDS, J., dissents. From the Tippecanoe Circuit Court. R. B. F. Peirce, B. T. Ristine, T. H. Ristine, H. H. Ristine, A. B. Anderson and B. Crane, for appellants. J. McCabe, for appellees. ELLIOTT, J.-The appellants allege in their complaint that they are the owners of an undivided interest in the land in controversy, and entitled to partition. James McCabe, one of the appellees, alleges in his counterclaim these facts: The only interest or title of the plaintiffs is founded on a deed executed to them by the sheriff, and |