Dickenson v. Gilliland

Woodworth, J. in delivering the "opinion of the Court, spoke nearly as follows : Any decision of ours, on this summary application, will not be so far conclusive upon the parties, as to prevent their drawing the same matters in question again in the more regular form of a suit, either in law or equity ; but we are called upon, and it is our duty, under the circumstances now presented, to give our opinion, as a guide to an officer of this Court in the discharge of a ministerial duty. On the 3d of July, 1821, Dickenson purchased under the Bay judgment, and at the expiration of the 15 months, took his deed of conveyance upon that sale. On the 22th of October, in the same year, he sold again under an execution in this cause, and became the purchaser at $1593. It is denied, that the sale under the Bay judgment could have any effect, because that judgment had ceased to be a lien within the statute. (Sess. 36, ch. 50, s. 1, 1 R. L. 500.) Under the second sale, Dickenson received a certificate, and this sale is admitted on all hands to have been regular and valid ; both Dickenson and the Bleeckers referring themselves to it, as the foundation of the titles which they respectively claim. It appears by the certificate, that the lands in question consisted of six different tracts or parcels in the whole 3 [496] but the principal part of them lay in two parcels; which s°ld together for $1500. On the last day of the 15 months. from Dickenson’s second sale, B. & J. R. Bleecker, as junior creditors, claiming under a judgment of the 27th of January, 1819, applied to the Sheriff for a deed, paying him the principal sum bid by Dickenson, with 7 per cent, only, which is admitted to be 3 per cent, short of the sum required by the statute. Luce, the agent of the Bleeckers, states, that he was ready, and had instructions to pay whatever sum was necessary to redeem. Rut it seems that both Luce and the Sheriff thought 7 per cent, enough. He paid that sum accordingly, in consideration whereof the deed was given. Dickenson, on discovering that the deed had been executed without the payment of the 10 per- cent, demanded of the Sheriff a conveyance to himself, as the original purchaser. The Sheriff declined giving one. It is alleged that the Bleeckers, afterwards, made good the deficiency by a supplemental payment. The principal question is, whether this payment was Substantially a compliance with the statute. It was much insisted on, in the argument, that the Bleachers had no right to redeem, because their lien was gone by the sale on the Bay judgment. One answer given to this, was, that the affidavit setting forth that sale, was wrongly entitled; and we incline to think the objection well taken ; but if the affidavit is admissible, it does'not shew, that Gilliland’s title was divested hy ■ the sale. O11 the 9th of April, 1821, the Bay judgment ceased to be a lien. The statute (sess. 44, ch. 238, s. 3,) extends this lien three months from the 3d of April, 1821, in favour of those judgments, only, upon which executions had before been issued and actually delivered to the proper officer. ■ Non constat, that execu-. tion had issued upon this judgment before that time. Dickenson should have shewn to us affirmatively, that the lien existed at the time of the sale. We cannot say, from any thing. Which appears, that it was continued ; and there is, consequently, nothing in this objection to defeat the right of the Bleeckers to redeem.. [497] Again: it was insisted that the Bleeckers could not redeem ^ a part only of the premises sold. The application was to redeem all, except 20 acres, which Keith had previously redeemed as the grantee of Gilliland. It is said, that Keith had no right to redeem this parcel; that it still remained subject to the certificate; and the Bleeckers’ offer to redeem, not reaching this parcel, was, therefore, irregular. This raises the question whether a single parcel can be redeemed; or whether the subject of redemption is, at all events, and in all cases, the whole land sold. To show thát it must be the whole, Erwin v» Schriver is relied upon: but that case is distinguishable. It was a sale of land owned by several tenants in common, upon a judgment against all the tenants ; and a junior judgment creditor of one of the tenants in common, came in to redeem the whole. The land was, moreover, sold in one entire parcel, for a single sum. This case is different. Here is a sale in separate parcels, for separate sums; and we are clear, that it is competent to redeem any single parcel thus sold. The difficulty raised- on the argument was, that the statute gives the redeeming creditor all the rights of the original purchaser ; and it was said, therefore, to contemplate á total redemption. But these words may well be limited to the estate in the parcel, and do not, necessarily, extend to all the lands sold. The words of the act may thus be satisfied, and the manifest inconvenience of a contrary construction avoided. Suppose the Dickenson judgment had been a lien on two farms ; at the Sheriff’s sale, A buys one, and B the other; each purchases at a separate sum ; no evil could arise from a separate redemption of either. Suppose them bound by the first judgment; and that one of them is aliened before the second judgment is obtained ; when both are sold under the first judgment to separate purchasers; is it to be tolerated, that the grantee of the debtor should be postponed to the second judgment creditor, and lose the preference, which the statute so plainly intends to give him, of a right to redeem within the year ? or would the second judgment creditor be deprived of the right to redeem the remaining farm, because his judgment was not a lien upon that which had been aliened ? We think not. The [498] 20 acres had been sold to Keith, and the one acre to PrindU? after the first, and before the second judgment: they were purchased by Dickenson separately, and at distinct sums for each. We think the grantees, respectively, had a right to redeem ; in default of doing so, these parcels would remain to Dickenson—neither of them being bound by the Bieeclcer judgment. It is the same as the case supposed, of a sale to different persons. In this view, the Sheriff had no power to include the one acre in the deed to the Bleeckers ; but such a circumstance would not have prevented its operation as to the residue. The main question, then, and the one upon which we put our decision, is, can the redeeming creditor take the land without a strict compliance with the statute, by paying the 10 per cent, within the 15 months ? The 2d section says, that the defendant may, within one year from the sale, redeem, by paying the sum of money which may have been paid on the purchase, together with , the interest thereon, at the rate of 10 per centum per annum,, from the time of the sale. The 3d section provides that the junior judgment creditor may redeem in the manner prescribed in the second section. The omission to pay the 10 per cent, must have arisen from a mistake of the law ; and this mistake was probably committed from the 10 per cent, not being reiterated in the 3d section. The Bleeckers, doubtless, intended to redeem, by paying the full sum required by the act: but, if this is not" done, the statute is peremptory in its terms. It gives the deed to the first purchaser. It was urged upon the argument, that the Sheriff might have received a part, and given credit for the residue; or, indeed, that it was in his discretion to have dispensed with the payment of the money altogether, trusted the creditor, and assumed the debt himself. But there is nothing clearer, than that a special agent must conform to the authority with' which he is clothed.(m) if he does not, his acts are void. The power of the Sheriff here is ìü very close analogy t~ that of receiving- money of a defendant, who is arrested up.~ on a Ca. sa. The Sheriff, or the plaintiff~s atforney, may receive the monev, and discharge the defendant. Yet the [499] -actual receipt of the money is a condition of the discharge, with wh*ch 'hey cannot dispense.(n) Without the actual receipt, the discharge is void, and the defendant may be again arrested, at the instance of the plaintiff, or the Sheriff may be sued for the escape. Accordingly, where a Coroner held an execution against- the Sheriff, and the former being in-deb ted to the latter, in the full amount of the execution, assumed the debt and gave him a discharge, this was holden void, and the Sheriff was, notwithstanding, made liable for the debt. The Coroner exceeded his Special powers. He had no discretion, but was bound to exact the money. Actual- payment was necessary, to warrant the discharge. These cases go upon the ground of publick policy, which will not suffer the officer to travel out of his duty. Apply these principles to the present case. The statute points out the officer’s duty specifically ; and is it possible to deny the purchaser his claim for a deed, under the circumstances of this case 1 The money was not paid within the time limited. We deem this a condition precedent. Suppose this deed had been delivered as an escrow, to become absolute on the payment of the money by a given day, and there had been a default in thepayment'at the time, clearly the deed would be void ; and yet that is not a stronger case against the purchaser, than the present one against the judgment creditor. We eannot refuse the purchaser his deed, without disregarding all the well known principles which govern the conduct of special agents. We were urged to overlook the one acre sold to Prindle, and also another parcel, of 50 acres, in the possession of Brown, and apply the payment to the remaining parcels, as to which it was said, enough was paid in the first instance: but we cannot arbitrarily apportion the payment in this manner. It was general, and is void as to the whole. We decline interfering with the deed of the Bleeckers. If we are right, there is no need of interfering with it, for that deed is a nullity. The Sheriff must convey to Dickenson, Footnotes [(m)] Vid. 1 Livermore on Agency, Ch. 5, s. 2, and the cases there cited. [(n)] Kellogg v. Gilbert, 10 John. 220. Morgan v. Turner, 6 id. 51.