18 Iowa 537 | Iowa | 1865
Plaintiff and defendant (Watson) reside in the same place, and within a few rods of each other. At the time of the redemption, plaintiff was not aware that Watson held the certificates of purchase; nor did he know that he claimed any interest in the property, or in the sale thereof, but did suppose and believe that the money would go to the plaintiff in execution at Chicago, either directly or through their attorney (C. H. Conklin, Esq.), who had bought the property, part in his own name and part in the name of his clients.
On the last day of December, 1863, plaintiff offered to pay to the clerk $285.50, currency, in part redemption of said lands. At this time the execution had not been returned by the sheriff, and there was no means of ascertaining precisely the amount required for the redemption. The clerk declined to take this money, upon the ground that it was not a legal tender, and requested plaintiff to go to a bank and get it exchanged. At plaintiff’s suggestion the clerk consented to accept a certificate of deposit, payable in United States treasury notes. Webb, on the same day returned and gave the clerk the following instrument:
“ Vinton, Iowa, Dec. 81, 1863.
“ $285/oV
“ J. W. O. Webb has credit in oür office two hundred and eighty-five TW dollars in currency.
“ J. C. Traer & Co.”
This certificate the clerk received and made an entry on the judgment docket and sale book, to the effect that this amount had been paid to redeem from the said sheriff’s sale. There was no United States revenue stamp upon this instrument, nor was it indorsed or assigned by or to any person.
“January 2d, 1864. J. W. O. Webb deposited with the clerk $813.55 [in currency] for the purpose of redeeming in full from the foregoing sale.
“ James Chapin,
“ Clerk District Court."
The words in brackets were interlined by the clerk about a week after the deposit, and after he learned that there would probably be difficulty. On the 4th of the month Watson called upon the clerk to ascertain whether there had been a redemption, and upon being advised of what had been done, insisted that he was entitled to a deed, which he accordingly obtained on the 6th. The testimony warrants the conclusion that the clerk had, at the time of the attempted redemption, a deposit account with Traer & Co., or did have a short time before, and that Webb understood that if he left the money there it would answer the same purpose as if deposited with the clerk. At the time of the deposit, the bankers expressed their willingness to pay in “ greenbacks ” if required, but it was supposed by all parties that the funds would be sent to Chicago by draft, and they had as well remain on deposit until plaintiff in execution made some order as to their disposition. At the time Watson called upon the clerk, “legal tender ” notes could have been obtained at the bank (which was but a few rods distant) if he had been willing to receive the same, and the bankers were at all times willing and ready to pay in said funds, and they were afterwards (on the 25th of February) tendered and declined. Plaintiff acted in the utmost good faith, expressed his anxiety to do all that was necessary to redeem his land, and left the
The case of Dougherty v. Hughes, 3 G. Greene, 92, holds expressly that a bank certificate of deposit is not money or its equivalent, and is not therefore available to redeem land sold under execution. And, to the same effect, see The People v. Baker, 20 Wend., 602. And so far as these and similar cases assert the proposition, that a check or certificate of deposit thus handed or passed to the officer is not payment, their correctness need not be controverted. Should such a certificate or check be paid, however, either before the expiration of the time of redemption, or in time to meet the demand of the person for whose use the same was paid by the redemptioner, there is no suggestion in either of the cases cited that the redemption would not be effectual. There can be no question as to its sufficiency if the check is paid before the time expires; for then the
As applied to the case before us, however, there are seeming, if not actual, difficulties in the way of giving the plaintiff the benefit of even such a rule. The instrument left with the clerk can hardly, having a strict regard to
The case above cited (3 Gf. Greene, 92), admits that if the officer receives bank notes, constituting, as they do, to a great extent, the circulating medium of the country, the redemption would be complete. And to the same effect see Ex parte Board, 4 Cow., 420, where it was held, that the sheriff might- receive the current bank bills of the country, though the creditor forbid it, and also, Hall v. Fisher, 9 Barb., 17, and Ex parte Becker, 4 Hill, 613. In this last case the payment-was in foreign coin, not a legal tender. It is not necessary to go as far as the case of Hall v. Fisher, for, in this case, there is no pretense that the clerk had any instructions on thé subject. It is only required of us to say, that if the clerk received from the debtor bank bills, constituting and forming a part of the circulating medium of the country, such as are received and paid as money in all the business transactions of the country, the debtor shall not suffer the forfeiture of his land should the party claiming the sheriff’s deed refuse to accept the same. To a certain extent the clerk must be recognized as the agent of the purchaser. His powers are by no means so imlimited, as to authorize him to receive anything else than money or its equivalent for the redemption. But when, without fraud on the part of the debtor, he receives such equivalent, and the debtor in good faith takes his acquittance, what
Dismissing, however, this line of argument, we come briefly to the application of the general rules above stated to the facts of this case. And a fair deduction from all the
To avoid all possible misapprehension, it is proper to say, before closing this opinion, that the case is put and decided upon its own, for the most part, equitable circumstances. It is not intended to hold that the clerk is the agent of the holder of the certificate of purchase, to the extent that, if he receives currency for the redemption, the holder will be concluded therebjq and compelled to accept the same. But what we do hold is, that, if, in good faith on the part of the redemptioner and the clerk, currency shall be paid and received, which is accepted and deposited, with the honest intention of redeeming from the sale, the holder of the
Eeversed.