Jackson ex dem. Lansing v. Law, 5 Cow. 248

Jackson ex dem. Lansing v. Law

5 Cow. 248 | N.Y. Sup. Ct. | 1825

Curia, per Woodworth, J.

The premises, in question were sold on the 14th April, 1821, under a judgment recovered by John Williams, against Gerrit Quackenbush, on the 15th of February, 1806. John Law, one of the defendants, became the purchaser. On the 29 th May, 1815, two judgments in favor of John Whiteside against Quackenbush, were docketed; and on the 13th of July, 1822, assigned to the lessor of the plaintiff, who, on the day last mentioned, redeemed the lands sold under the judgment of Williams, in the manner prescribed by the act, and received a deed from the sheriff.

The material question arising in this case is, whether the judgments in favor of Whiteside were, at the time of the redemption, a lien on the land. On the part of the defendants, it appeared that in 1817, executions were issued on the judgments of Whiteside, and also on judgments in favor *252of other plaintiffs, to the sheriff of Washington county; tha in May, 1818, the sheriff proceeded to sell the right of Quackenbush; and thereupon John Law, being a judgment credi tor, tendered to the sheriff bank notes, on the Whiteside executions, for the purpose of compelling him to sell upon executions issued on junior judgments. The sheriff, who was examined as a witness states, that the money was not counted, but he had no doubt that the quantity was sufficient ; that in consequence of this tender, he did not sell on the executions of Whiteside, but sold the premises on two junior executions to Jacob Lansing, the lessor. The case does not state that the sheriff refused to accept the money tendered; but I understand that the fact is so. He suspended the sale under the executions of Whiteside, but did not receive payment. Afterwards, Lansing, having become the assignee of the judgments, redeemed under them the land sold by virtue of the judgment of Williams. There are a number of other facts in the case, not deemed material to the decision of the cause.

By the third section of the act concerning judgments and executions, (sess. 43, ch. 184,) any creditor, who shall have a decree in Chancery, or a judgment at law, against a defendant, has a right to redeem. It seems to me that, at law, the lien did not cease by reason of the tender. It is undoubtedly the duty of a sheriff to receive the money on a fieri facias, when offered: and if refused, on application to the court, a summary remedy would be applied, restraining the sheriff from making a sale, or by directing satisfaction to be entered on record, on payment to the plaintiff. No attempt, however, was made by Law to obtain a discharge of the judgment, after the tender made to the sheriff. He cannot, therefore, claim that the judgment was satisfied; and if it vas not, Lansing had a right to redeem under it. The doctrine of tender is not applicable; for that cannot be made after an action is commenced; (6 Bac. 452; Bro. Tender, pi. 9;,) and, in cases where a tender is made in season, arid the creditor refuses, the effect is merely to discharge the debt- or from subsequent interest. (6 Bac. 458.) The principal is never discharged, unless under peculiar circumstances; as where there was not, after the tender and refusal, anyrem*253edy to enforce the payment of the debtor, the performance of the duty. (6 Bac. 156. 1 Inst. 207.) The effect of the tender, in this case, is to bar the damages or interest. To that extent it would have been available, if Law had applied for redress. The debt still, remains due, and the judgment in force. Law never brought the money into court, but still retains it. His omission to claim the interference of the court, has left the plaintiff in possession of a ralid judgment, which the statute authorized him to use in the manner he has done. On the question before us, admitting that the tender discharged all subsequent interest, it does not affect the title; for the judgment was a lien until wholly paid. If any part remained due, it continued a lien. If the defendant is subjected to loss by the redemption, it is imputable to his want of vigilance in not following up the tender by an application to this court, where ample redress might have been obtained. I am of opinion that the plaintiff’is entitled to judgment.

Savage, Ch. J. dissented.

Judgment for the plaintiff.