Gilchrist v. . Comfort

*238 Wright, J. The premises, on the 5th October, were purchased by Harry L. Farnham, at a sale made by the sheriff of the county of Otsego, under executions upon judgments against one Benjamin Barrett, and on the 20th March, 1855, he received a sheriff’s deed thereof in pursuance of his purchase. On the 3d March, 1855, Farnham conveyed the title thus acquired to the trustees of the First Methodist Episcopal Church of Springfield, and the defendant Comfort, as the pastor of the church, was, at the commencement of the suit, in possession of the premises claiming under the title from, Farnham. The plaintiff, Gilchrist, claimed title to the premises, as a redeeming creditor, from the sale to Farnham, and the material questions are, as to his right and the validity of his proceedings to redeem. If he made no legal redemption he had no title to the premises. There is no controversy as to the facts on which the questions arise. In June, 1852, Gilchrist recovered two judgments. against Barrett, upon which executions were forthwith issued and were in the hands of the sheriff, with others of older and younger date, at the time he advertised to sell, and sold the - premises. At the sale, and before it opened, Gilchrist directed the officer not to sell under his executions, and the officer replied that he would not; but the executions. were not actually withdrawn, nor was there any formal announcement to bidders that- the sale would not take place under them. The sale proceeded, and Farnham purchased the premises, receiving the usual certificate of sale. On the last day of the fifteen months in which a creditor may acquire the title of a purchaser, at a sheriff’s sale of lands on execution (or as it may be more shortly expressed, redeem the premises) at about half-past nine o’clock in the evening, Gilchrist’s attorney presented to the sheriff, in liis behalf, at the sheriff’s dwelling house, in the village of Cooperstown (the sheriff’s office being in another part of the village), copies of the dockets of the two judgments recovered against Barrett in June, 1852, duly certified (being the same judgments upon which executions had been issued and remained in the hands of the sheriff at the time of the *239 sale) with affidavits of the true sum due on the judgments; and, at the same time, paid to the sheriff the sum of $255.75, as and for the amount of Farnham’s bid, and interest thereon from the time of sale. This was the only step ever taken by Gilchrist to redeem, and subsequently, in disregard of this proceeding, as has been stated, the sheriff completed the sale by conveying the premises to Farnham, the original purchaser. The mode of obtaining title to land sold under execution by redemption, is wholly a creation of the statute, and its provisions must be strictly followed. The statute provides that after one year and before the expiration of fifteen months from the time of sale, any creditor having a judgment that is a lien or charge upon the premises sold, may acquire the title of the purchaser at such sale, or in other language, redeem the premises- by paying the amount of the purchaser’s bid with interest thereon from the time of sale; and that whenever any such creditor shall have acquired the title of the original purchaser, any other creditor who might have acquired such title, may become a purchaser thereof from the first creditor who acquired the same, by reimbursing to him the sum paid by him to acquire such title, with interest, and also, if his judgment be prior to that of such second creditor, and be a lien as against the other, the amount due on such judgment; and in the same manner, any third or other creditor who might have acquired the title of the original purchaser, may become a purchaser thereof from the second, third or any other creditor, upon the same terms and conditions; (2 R. S., 371, 372, §§ 51, 52, 53, 54, 55, 56.) It is further provided that the sums required to be paid to acquire the title of the original purchaser, or to become a purchaser from any creditor, may be paid to such purchaser or creditor, or to the officer who made the sale for ' the use of the purchaser entitled to the same; and that to entitle any creditor to acquire the title of the original purchaser, or to become a purchaser from any other creditor, he shall present and leave with such purchaser or creditor, or the officer who made the sale, a copy of the docket of the *240 judgment or decree under which he claims the right to purchase, duly certified by the clerk of the court or of the county in which the same is docketed, and an affidavit by such creditor of the true sum due on such judgment or decree, at the time of claiming such right to purchase. (§§ 59, 60.) Thus, a creditor having a lien, by judgment on decree, on the premises sold (unless they were sold under his execution) after one year and before the expiration of fifteen months from the time of sale may, in the way prescribed and pointed out by the statute, acquire the title of the purchaser at the sheriff’s sale, and having acquired such title any other creditor entitled to acquire it, may become a purchaser thereof from the first creditor who acquired the same, upon the terms and conditions specified, and so on until the expiration, of the fifteen months, any third or other creditor entitled to acquire the title of the original purchaser, may become a purchaser thereof upon like terms and conditions from the second, third or any other creditor who may have become such purchaser. In short, a creditor, during the last three months of the fifteen, having a lien on the premises by judgment or decree, may, in the mode prescribed by the statute, redeem them from the original purchaser; and until the expiration of the fifteen months, creditors entitled to redeem may redeem successively from each other upon the terms and conditions prescribed. This redemption, as is seen by the statute cited, was required to be made to the original purchaser, or to the creditor that had previously acquired his title, or to the officer who actually sold the land; and the time for making them expired at the end of the fifteenth month. This “ auction among the creditors for the land,” as it has been not inaptly termed, might be earned on anywhere, through the officer making the sale, up to the last hour of the last day. But in 1847, an act was passed (Laws of 1847, chap. 410), the third section of which declared that “ all redemptions which shall hereafter be made on or after the last day of the fifteen months by any creditor, shall be made at the sheriff’s office of the county in which the sale took.place,” and added, “that it shall be the duty of the *241 officer making the sale, to attend at said office during the last day for making such redemptions, and during the time thereafter in which such redemptions may be made, and in case of the absence of the officer who made the sale from the sheriff’s, office at such time, then such redemption may be made to the sheriff; and in his absence, to the under-sheriff or any deputy present at such office, &c.” The remainder of the section provided that when a redemption is made prior to the last day, a statement of the particular facts concerning it shall be immediately filed in the county clerk’s office; and the succeeding section provided that when one redemption had been made, any other creditor entitled to do so, might make a redemption within twenty-four hours after the last preceding redemption. So that, as the law now exists, a redemption by a creditor “on the last day of the fifteen months,” to be valid and effectual, must be made at the sheriff’s office. The statute is plain and peremptory in this respect, and cannot be disobeyed or disregarded. It is an express and positive requirement, and must be strictly followed, or nothing is accomplished. There is no force in the suggestion, that, where the sale is made by the sheriff in person, the redemption is not required to be made at the sheriff’s office, but may be made to him personally away from-his office, and after office hours. Such a- construction receives no countenance, either from the language of the law or. the object of the requirement. That object was, to prevent surprise in cases where a redemption is effected just before the end of the time allowed; and this is attempted to be done by fixing upon a common public place, to which the creditors interested may resort, and inform themselves of what has been transacted, so that they may take the necessary measures to protect their rights according to the exigency which the circumstances may create or disclose. In this view, it is of no sort of importance whether it is the sheriff, or an under-sheriff or deputy, that made the sale. Hor is there any foundation for the argument, that,.if the officer who made the sale is not present at the. office, the redemption may be made to the sheriff himself, wherever he *242 may be found. The statute will bear bo sueh. construction. Its fair reading is, that, if the officer (under-sheriff or deputy) who made the sale is present-at the. office, although the sheriff be also present, the redemption is to be made to the officer who made the sale. If such officer be absent from the office, and the sheriff be present, the redemption may be made to him. If the officer making the sale and the sheriff bp both absent from the office, the redemption, in that ease, may be made to the under-sheriff or any deputy present at such office. The “ absence” of the sheriff mentioned in the statute clearly has reference to his absence from his office, and can mean nothing else. B o other absences than from the sheriff’s office are mentioned.- If a redemption could be made to the sheriff out of his office, then the provision that they shall he made at the sheriff’s office has no effect; hut construing the word “absence” to -mean absence from the office, and every, word has effect according to what was the obvious purpose of the statute. Since the act of 1847, therefore, a redemption by a creditor, on the last day allowed for redeeming, to be valid, and effectual, must be made at the sheriff’s office of the county in which the sale took place. The redemption attempted by Gilchrist was on the last" day of the fifteen months, and was made to the sheriff at his dwelling house, and not at his office. It was, consequently, ineffectual and void, and did not entitle him to a deed of the premises in dispute. In his case, there is-no excuse for not conforming to the law. There was no attempt -to redeem at the office, although an officer was there present to whom a redemption could have been made. The diligence of his attorney in seeking the sheriff elsewhere is of no importance, for that fact cannot supply the omission to redeem at the only place where it could lawfully be done. Being of the opinion that the attempted redemption of the plaintiffs’ ancestor was wholly inoperative and void, it is unnecessary to pursue the inquiry as to his right, under the statute, to redeem. • The order of the Supreme Court should be affirmed, with *243 costs, and judgment absolute rendered against the appellants. Concurring, Davies, Ch. J., Porter, Smith, and Peckham, JJ.; Hunt, J., dvbitante.