People ex rel. Newell v. Muzzy

| Court for the Trial of Impeachments and Correction of Errors | May 15, 1845

By the Court, Jewett, J.

The question which is immediately put in issue by the demurrer to the relator’s plea, is, whether the erasure of the word “ Portland” and substituting the word “ Westfield” in the assignment of the certificate of the sheriff by Tabor to Stephen Smith, avoided the assignment.

It is supposed that as the lands sold and described in the certificate of the sheriff were situate in the town of Westfield, and not in the town of Portland, that the assignment failed to convey any interest in them, by reason of that misdescription of the town in which the same were situate, and that therefore the alteration was material. The assignment was annexed to the certificate, and in terms conveyed to' Smith all the right, title and interest of Tabor in and to the certificate, and the certificate itself contained a full description of the premises by number of lot, survey, township, range, &c. and stated that the premises were situate in the village of Portland. It is quite apparent to me, that the additional false description in the concluding part of the assignment, as it originally stood, to the effect that the premises mentioned in the certificate were situate in the town of Portland, was entirely immaterial, and that the substitution of the word “ Westfield,” as being the town in which the lands were in fact situate, was not material. The whole sentence was mere surplusage, and could in no manner affect the validity of the assignment, or the interest conveyed, or attempted to be, in the lands sold and described in the certificate; for whether they lay in Portland, Westfield, or in any other town, the assignee of the certificate would have been entitled under it and the assignment, to the lands, or the interest in them, in whatsoever town they were situated. I hold, therefore, upon the authority of the case of Herrick v. Malin, (22 Wend. 388,) that the alteration in the assignment from Tabor to Smith, whether made by his agent or other person, did not avoid it. Stephen Smith, then, became entitled to the deed as assignee of the purchaser, or as a redeeming creditor, provided he had taken the necessary steps as such assignee or redeeming creditor, before the sheriff, on the first day of August, 1842.

Assuming, then, that Stephen Smith had acquired the interest of Tabor in the certificate, and taking into view the facts stated in the return, that he also presented and left with the officer the evidvA.ce required .by the statute, shewing himself to be the holder of unsatisfied judgments, which Avere a lien upon the premises, the relator, the lien of whose mortgage was subsequent to that of these judgments, could not acquire the title of the purchaser, Avithout paying, in addition to the amount bid at the sale, and interest thereon, the further amount remaining due upon the judgments. This he did not do, but contented himself with simply paying the amount of Tabor’s bid, Avith interest. He has failed, therefore, to.entitle himself to a deed.

It is, hoAvever, insisted that Smith did not take the steps necessary to enable him to claim the amount due on his judgments, as a creditor. It is said that he ought, in addition to furnishing the proof of the dockets, assignments' and amount due on his judgments, to the officer, to have himself actually redeemed, by paying to the officer the amount of the money paid on the sale by Tabor, with interest. That point Avas settled in Ex parte Newell, (4 Hill, 608.) Smith being assignee of the certificate, and in that character representing Tabor, the purchaser, and also uniting in himself the character of a subsequent judgment creditor, Avas under no necessity to pay the amount of the purchaser’s bid to entitle himself to the effect of his proceedings, but he Avas entitled to receive from any creditor claiming under a lien junior to his, both the bid and interest and the amount of his judgments.

But it is insisted by the relator, that Smith did not present'to the sheriff sufficient evidence, or take such steps as the assignee of Tabor, to entitle him to a deed under the provisions of the statute. (Sess. Laws, 1835, p. 210, §§ 1, 2.) The 1st section is as folloAvs: “ Before any assignee, or his personal representative, shall be entitled to a deed under this act, he shall cause the execution of any arid every assignment under Avhich such deed is claimed, to be duly acknowledged or proved, as deeds are required by laAv to be acknowledged or proved to entitle them to be recorded, before some officer authorized to take the acknowledgment and "proof of deeds; and shall cause all such assignments, Avith their certificates of proof or acknowledgment, to be filed in the office of the clerk of the county in Avhich the real estate so sold is s tuated, but it shall not be necessary to have acknowledged the execution of any assignment heretofore made of such certificate.” Smith caused his assignment of the sheriff’s certificate to be duly acknowledged, as deeds are required.by law to be acknowledged to entitle them to be recorded, but he had not caused the assignment, with the certificate of acknowledgment, to be filed in the office of the clerk of the county in which the real estate so sold was situate, on or before the first day of August, 1842. This objection would not be free from difficulty, provided Smith is to be deemed as claiming a deed as assignee of the certificate. A literal construction of the provision of the act, in that case, might shut him out, if he could do no act, subsequent to the last day provided for redemption, to entitle him to a deed as assignee. It is riot, however, any where declared that the filing of the assignment, to entitle the assignee to a deed, must take place within the fifteen months allowed for a'creditor to acquire the purchaser’s title. But this question'is not necessarily involved in this case, for I am of the opinion that Smith may be regarded as a-redeeming creditor. It was so held in Ex parte Newell, before cited, and in The People v. Ransom, (2 Hill, 51.) In that character, therefore, if not as assignee, Smith was entitled to the deed. The assignment of the certificate so presented to the sheriff, with the other evidence of his judgments, assignments, and amount due upon them, availed him so far as to relieve him from the necessity of paying into the hands of the officer the amount of the purchase money with interest. If I am right in this construction of the statute, it follows that Stephen Smith was entitled to the deed as a redeeming creditor. It is, therefore, unnecessary to decide the other questions raised in the case.

Judgment for the defendant.