1 Cow. 481 | N.Y. Sup. Ct. | 1823
Lead Opinion
Woodworth, J. in delivering the "opinion of the Court, spoke nearly as follows : Any decision of ours, on this summary application, will not be so far conclusive upon the parties, as to prevent their drawing the same matters in question again in the more regular form of a suit, either in law or equity ; but we are called upon, and it is our duty, under the circumstances now presented, to give our opinion, as a guide to an officer of this Court in the discharge of a ministerial duty.
On the 3d of July, 1821, Dickenson purchased under the Bay judgment, and at the expiration of the 15 months, took his deed of conveyance upon that sale. On the 22th of October, in the same year, he sold again under an execution in this cause, and became the purchaser at $1593. It is denied, that the sale under the Bay judgment could have any effect, because that judgment had ceased to be a lien within the statute. (Sess. 36, ch. 50, s. 1, 1 R. L. 500.) Under the second sale, Dickenson received a certificate, and this sale is admitted on all hands to have been regular and valid ; both Dickenson and the Bleeckers referring themselves to it, as the foundation of the titles which they respectively claim. It appears by the certificate, that the lands in question consisted of six different tracts or parcels in the whole 3
The principal question is, whether this payment was Substantially a compliance with the statute.
It was much insisted on, in the argument, that the Bleachers had no right to redeem, because their lien was gone by the sale on the Bay judgment. One answer given to this, was, that the affidavit setting forth that sale, was wrongly entitled; and we incline to think the objection well taken ; but if the affidavit is admissible, it does'not shew, that Gilliland’s title was divested hy ■ the sale. O11 the 9th of April, 1821, the Bay judgment ceased to be a lien. The statute (sess. 44, ch. 238, s. 3,) extends this lien three months from the 3d of April, 1821, in favour of those judgments, only, upon which executions had before been issued and actually delivered to the proper officer. ■ Non constat, that execu-. tion had issued upon this judgment before that time. Dickenson should have shewn to us affirmatively, that the lien existed at the time of the sale. We cannot say, from any thing. Which appears, that it was continued ; and there is, consequently, nothing in this objection to defeat the right of the Bleeckers to redeem..
The main question, then, and the one upon which we put our decision, is, can the redeeming creditor take the land without a strict compliance with the statute, by paying the 10 per cent, within the 15 months ? The 2d section says, that the defendant may, within one year from the sale, redeem, by paying the sum of money which may have been paid on the purchase, together with , the interest thereon, at the rate of 10 per centum per annum,, from the time of the sale. The 3d section provides that the junior judgment creditor may redeem in the manner prescribed in the second section. The omission to pay the 10 per cent, must have arisen from a mistake of the law ; and this mistake was probably committed from the 10 per cent, not being reiterated in the 3d section. The Bleeckers, doubtless, intended to redeem, by paying the full sum required by the act: but, if this is not" done, the statute is peremptory in its terms. It gives the deed to the first purchaser.
It was urged upon the argument, that the Sheriff might have received a part, and given credit for the residue; or, indeed, that it was in his discretion to have dispensed with the payment of the money altogether, trusted the creditor, and assumed the debt himself. But there is nothing clearer, than that a special agent must conform to the authority with' which he is clothed.
We were urged to overlook the one acre sold to Prindle, and also another parcel, of 50 acres, in the possession of Brown, and apply the payment to the remaining parcels, as to which it was said, enough was paid in the first instance: but we cannot arbitrarily apportion the payment in this manner. It was general, and is void as to the whole.
We decline interfering with the deed of the Bleeckers. If we are right, there is no need of interfering with it, for that deed is a nullity. The Sheriff must convey to Dickenson,
Vid. 1 Livermore on Agency, Ch. 5, s. 2, and the cases there cited.
Kellogg v. Gilbert, 10 John. 220. Morgan v. Turner, 6 id. 51.
Concurrence Opinion
■ He added, that this is the ' case °f a party asking to be relieved against a mistake of the law. Had it been a mere misaddition, or a mistake of fact, ^e Court might, perhaps, have interfered, and relieved against it; but being a plain mistake of the law, it is a case over which they have no control.
Savage, Ch. J. concurred.
The following order was thereupon entered:
John D. Dickenson \
William Gilliland. J /e& Luther, Sheriff of the county of Clinton Com. Pleas, Clinton, execute to John D. Dickenson, Barent Bleecker $• j a deed of the premises by him purJohnR. Bleecker j. chased, on the 29/A of October, 1821 v., at a Sheriff’s sale, under an execution William Gilliland, issued on a judgment in favour of the said John D. Dickenson, against William Gilliland, mentioned in the notice and papers filed in these causes, excepting 20s
v* z JYbv. 7, 1823. Ordered, that Ca-
This question was much considered in Hunt v. Rousmanier, (8 Wheat. 174.) Marshall, Ch. J. who delivered the opinion of the Court, (id. p. 215) says, “ Although we do not find the naked principle, that relief may be granted on account of ignorance of law, asserted in the books, we find no case in which it has been decided that a plain and acknowledged mistake in law is beyond the reabh of Equity.”
In that case, a power of attorney had been executed, which the parties supposed would create a specifick lien .on a vessel; and they intended that it should have that effect; but the instrument was so framed as to fail in answering the expected purpose; as to whiph, Marshall, Ch. J. says, “ We find no case which we think precisely in point; and are unwilling, where the effect of the instrument is acknowledged to have been entirely misunderstood by both parties, to say that a Court of Equity is incapable, of aff, rding relief.”
The cases cited by Mr. Hunter, in arguing that cause, as maintaining a contrary position, are, Lyon v. Richmond, 2 John. Ch. Rep. 51, 60 ; Underhill v. Howard, 10 Ves. 209, 228;Irnham v. Child, 1 Bro. Ch. Cas. 91 ; Lord Portmore v. Morris, 2 Bro. Ch. Cas. 219 ; Marquis of Townsend v. Sterngroom, 6 Ves. 328,382. The principle is certainly asserted, in several of these cases, that relief will not be granted, even in a Court of Equity, on account of ignorance of law. See, also, the opinion of Kent, Chancellor, in Storrs v. Barker, 6 John. Ch. Rep. 169.