4 Denio 137 | N.Y. Sup. Ct. | 1847
As the lands were sold by the sheriff on an execution upon one of the Biddle' judgments, as well as upon the Burnham and Dana judgments, the relator could not use that judgment, although a large balance remained due upon it, for the purpose of acquiring the title of the original, or any subsequent purchaser. (2 R. S. 373, § 58; Ex parte Paddock, 4 Hill, 544; Ex parte Stevens, 4 Cowen, 133.) But the relator also owned the other Biddle judgment, on which no execution had been issued; and the papers left with the sheriff were so prepared as to show the relator’s rights under each, as well as both of the judgments.
The first Biddle judgment (number 3,) was senior to the second, (number 4,) on which the sale was made by the sheriff; and it is insisted, that a creditor having a lien which is senior to the one on which the sale was made, has no right to acquire the title of the original purchaser. But the language of the statute is broad enough to cover the case. The substance of the provision is, that any creditor, having a judgment rendered at any time before the expiration of fifteen months from the time of the sale, may acquire the rights of the original purchaser.
The supposed case which I have been answering is not of much importance on the present occasion; for neither of the judgments of the bank of Ithaca comes between the judgment on which the sheriff sold, and the one under which the relator purchased. The bank could exercise its right to purchase, without being obliged to pay any thing beyond the liens which were prior to its own judgments. It is evident, therefore, that, no injury can be done by allowing the relator to purchase under a judgment which is senior to the one on which the sheriff sold.
The question has thus, far been considered as though the.
It has been further urged against the relator, that after selling under his junior judgment, he could not assert the lien of the senior one. But under our system, lands are always sold subject to the prior liens; and it can make no difference in principle whether those liens are owned by the execution creditor, or by third persons. A creditor who has several judgments does no wrong to any one by selling under that which is junior to the rest. It is known to the bidders, and to all others, that the land will remain subject to all prior liens.
The next objection is, that the relator did not present to the sheriff an assignment of the judgments from Biddle, who recovered them, to Drinker, who assigned to the relator. The answer is, that Drinker was not the. assignee, but the representative of Biddle. He assigned as administrator; and the facts that he was administrator, and that Biddle was dead, were proved by the affidavit which was presented to the sheriff. Although the statute does not, in terms, provide that such facts may be proved by affidavit, I think that kind of proof was sufficient for the occasion. Perhaps it was enough that Biddle was in fact dead, and that Drinker was administrator, without producing any proof of those facts. The statute does not require it. But the relator took the prudent course of furnishing prima facie evidence of those facts, and'that was sufficient. It is true that the letters of administration might have been produced; but the statute has not required that it should be done; and if the letters had been produced, they would not have proved the death of Biddle; nor could they have been properly left'with the sheriff, as was the affidavit, for the information of other creditors who might come to purchase.
Each of' the assignments from the administrator to the relator commences writh the title of the suit, one against four, and the other against three defendants, and then transfers the
A creditor who desires to acquire the title of the original purchaser must present a true copy of all the assignments of the judgment under which he claims, “ verified by his affidavit or by the affidavit of some witness to such assignments.” (§ 60.) In this case the affidavit was made by Kellum, who swore that he was the agent of the relator; and he transacted the business as such agent. He swore that he saw Drinker execute and deliver each of the assignments, and was a witness thereto. I am strongly inclined to the opinion that this would have been sufficient, even though there had been subscribing witnesses to the assignments—that the affidavit of the creditor’s agent, when he has equal means of knowledge, is the affidavit of the creditor within the meaning of the statute. The reasoning which would deny this must go far to show that the creditor cannot act by an agent or attorney in any part of the business, but must act in person; for the same section says, “ he shall present” all the necessary papers. The statute does not require the best evidence; for the interested creditor may swear himself, instead of producing the subscribing witness. There is nothing therefore in the nature of the case which should exclude the agent, where he is able to speak positively to the execution of the assignment.
But however, this may be as a general rule, here there was no subscribing witness to either of the assignments; and the affidavit might be made by any person who could swear, as
I have assumed that the bank was regular in all that it did for the purpose of acquiring the title of the original purchaser. But as the relator was also regular in his proceedings, and had the senior judgment; and as the bank did not pay that judgment, he, and not the bank, was entitled to" the deed.
The only remaining argument which has been used against the relator is, that the bank obtained a deed from the sheriff; and has since sold the land to bona fide purchasers. That is .1 matter with which the sheriff has nothing to do. He must do his own duty, and leave the purchasers from the bank to take care of themselves as well as they can. The relator must have a deed from the sheriff, because he is entitled to it; and because that is the only way in which he can be put in a condition to try titles with the bank, or with any one else who may be in possession of the land. But it must not be inferred from this mode of disposing of the argument, that I entertain the opinion that a bona fide purchaser from the bank will be able to defend himself against the relator’s title. He will undoubtedly find it necessary to resort to the covenants in his deed.
A good deal was said on the argument of this case, and that of The People v. Ransom, decided at this term, upon the abstract question whether the statute of redemptions ought to receive a strict or libera] construction. Cases may be found in the boobs where different judges have taken different sides of that question ; and some of the adjudications have gone far enough in
Beardsley, J. being interested, gave no opinion.
Judgment for the relator.
See The People v. Ransom, (post, p. 145.)