20 Wend. 555 | N.Y. Sup. Ct. | 1838
After advisement, the following opinions were delivered:
Although this case is quite voluminous, and the points presented somewhat diffuse, it involves but a single question : and that is, whether Waller, the appellant, entitled himself to the benefit of the purchase of the premises under the judgment in favor of Barker, and consequently to the sheriff’s deed, by virtue of his attempt to redeem on the 35th October, 1833 1 If he did, he acquired the interest of Mason, the mortgagor, in the premises, and of course the equity of redemption, and is entitled to pay off the mortgage, for the purpose of so far disencumbering his estate. If he did not effectually redeem, and failed to acquire the interest of Mason, then the respondent having by virtue of her purchase become entitled to all the estate that Mason had in the premises, she of course had possessed herself of the equity of redemption, and the appellant had no right to redeem the premises from the effect of the sale under the mortgage.
The idea that Waller may still redeem the mortgage, notwithstanding Mrs. Harris took the interest of Mason under the Barker judgment, is altogether fallacious. After that, he is a stranger, for his judgment being younger, is no longer a lien on the premises : all the estate of Mason, (the defendant in the judgment,) on which it could attach, having passed out of him to Mrs. Harris, by title paramount. I am aware it was said that Mrs. Harris lost the benefit of her purchase by subsequently foreclosing the mortgage, and that for that reason Waller’s judgment comes in next to it 5 and as the foreclosure is not conclusive upon judgment creditors, he thus makes out his right. This view is certainly ingenious, and if we are bound to yield to it,
Now it must be borne in mind, that redemption of lands under execution, is a creature of the statute, 2 R. S. 370 to 374, unknown to the common law, and hence it is obvious we must look to its provisions alone for the steps necessary to acquire a right under it. Before the act of 1820, Sess. Laws, 167, the purchaser was entitled to his deed on payment of the purchase money, by which the title passed absolutely. By that act, a system was devised which in effect extended a credit of fifteen months to the judgment debtor fron^the sale; and within which time he, or any assignee of his interest, or any junior judgment creditor, at the respective periods designated in the statute, upon complying with certain conditions therein prescribed, might redeem the purchase and take the deed. The act did not prescribe the evidence of the existence, amount, or ownership of the judgment under which the redemption was sought.' The right was put upon the facts, i. e. 1st. The ownership of a junior judgment) which was a lien; and 2d. The payment of the
If the appellant failed to effect a valid redemption from the sale under the Barker judgment, there is no ground on which he can maintain a claim to redeem from the mortgage. The sale on execution transferred all such interest as Mason, the debtor, had in the land at the time the judgment was docketed; and when at the end of fifteen months the sale ripened into a title, it necessarily destroyed the lien of all junior incumbrances. The lien of the appellant’s judgment was at an end, and from that time he was a mere stranger, having neither right nor interest to redeem from the mortgage.
The fact that there had been a statute foreclosure of the mortgage and a purchase under it by the respondent within the fifteen months, cannot alter the case. That proceeding barred the equity of redemption of the mortgagor, and all persons claiming title under him; but those who had obtained judgment liens on the mortgaged premises were not affected, 2 R. S. 546, § 8. The Barker judgment and the sale under it were as little prejudiced by the foreclosure of the mortgage as was the judgment of the appellant. Notwithstanding the foreclosure, both judgments continued to be liens on the property until a title was perfected under the first, and then the lien of the junior judgment was .extinguished. The appellant must therefore rest his case, as he does in the bill, on the ground—not that he is a judgment creditor merely—but that, being a judgment creditor, he redeemed from the sale under the Barker judgment, and thus acquired the title or equity of redemption of Mason, the mortgagor and judgment debtor..
This brings us to the real question in the cause. Was there a valid redemption from- the sale under the Barker judgment ? The appellant delivered to the sheriff an- execution which had been issued on his judgment, but did not present a copy of the docket. The statute declares, that to entitle a creditor to redeem he shall present to and leave with the officer who made the sale,
The act of 1820 did not prescribe the evidence to be produced by a creditor claiming the right to redeem. The consequence was that this matter was left, in a great degree, to the discretion of the sheriff and his deputies. Different officers were at liberty to adopt different rules of proceeding; and the same officer might sometimes receive, and at other times reject the same kind of evidence. Besides leaving the parties in doubt and uncertainity about their legal rights, a wide door was left open for favoritism and injustice. To remedy these evils, the legislature, in 1830, specially prescribed the evidence which should be presented by the creditor; and thus made the rights of the parties depend, not on the discretion of the officer, but on the law of the land. That this was a salutary provision can hardly be doubted ; but if it were otherwise, the remedy belongs to another branch of the government.
In referring to precedents to show how large a license had sometimes been taken in the construction of statutes, the appellant’s counsel remarked, that there were subjects of legislative regulation where no one, from reading the statutes, could even guess what was the actual state of the law on those subjects. There is too much truth in this remark. But if the courts have sometimes gone very far towards taking the place of law-makers, it is but justice to say, that of late years they have been striving, both here and in England, to get back again into their appropriate sphere of action. Except in relation to a few old statutes
In the case at bar we are asked to go much further than the current of authority, either ancient or modern, will warrant. We are asked to overlook and disregard a new provision introduced into the law of redemptions in 1830, and to construe the the statute just as though the amendment had never been made. There is, I think, no principle upon which we can hold this a valid redemption.
The respondent, by receiving the money which had been paid to the sheriff, did not waive the objection to the sufficiency of the redemption. Her agent acted under the false representation that a copy of the docket had been presented to the sheriff; and when the truth was discovered she offered to refund the money. It is not material that it was the sheriff, and not the appellant, who misled the respondent; nor is it important to enquire, whether the sheriff was governed by a bad motive. It is enough that the respondent acted upon information on which she had a right to rely, and which proved to be false. Indeed, if nothing whatever had been said, it is difficult to perceive how she could waive or
The regular mode of testing the validity of the redemption was a direct proceeding to set aside the sheriff’s deed j and in this section, where the question arises collaterally, I should have held the deed conclusive of the rights of the parties, if that ground had been taken at the proper time. But the parties have, I think, consented to litigate that question in this section. The invalidity of the redemption was set up in the answer; both parties have taken proofs on the question, and it has been the principal point of controversy in the cause. Had the appellant excepted to the answer for impertinence on the ground that the validity of the deed could not be questioned in this proceeding, the respondent would then have moved the supreme court, or filed her cross bill in the court of chancery, for the purpose of avoiding the deed. But no exception to the answer was taken. So far as appears, the appellant suffered the cause to proceed to a hearing and a decree in the court below, without any question as to this mode of trying the right; and now, after a decision against him on the merits, he objects for the first time, and in a court of review, to the form of the remedy. The objection comes too late. We cannot yield to it without working great injustice.
It was said by the appellant’s counsel that the sheriff, under the Barker judgment, sold in one lot several parcels of land which should have been put up separately, and that the sale was consequently void. If the objection were well founded in point of fact, and if it could be raised in this collateral proceeding, it is a sufficient answer to it that the question is not made by the pleadings. The appellant in his bill does not attempt any impeachment of the sheriff’s sale. On the contrary, he expressly affirms the sale, and claims a title under it.
There is another ground on which the cause might, perhaps, be safely placed. If the sheriff in his discretion might dispense with the proof required by the statute when the appellant came to redeem, equity requires that he should have been equally in
I think the decree of the chancellor is right, and that it should be affirmed.
On the question being put, Shall ¿Ms decree he reversed ? all the members of the court, S3 being present, voted in the negative.
Whereupon the decree of the chancellor was unanimously affirmed.