Prescott v. Everts

By the Court, Cole, J. An objection is taken to the bill filed in this cause, that it is defective, in not alleging that the complainant presented to and left with the purchasers at the sheriff’s sale, or the officer making the sale, a copy of the docket of complainant’s judgment, and his affidavit of the true amount due upon such judgment, at the time' of claiming the right to purchase the title of the original purchasers. The bill alleges that the complainant, on the 6th of November, 1854, went to the office and place of business of the defendants Perry H. Smith and Anson Ballard, in the town of Appleton, and presented and delivered to said Ballard a copy of the record and docket of his judgment, duly certified to by the clerk of the Circuit Court of Outagamie county, and also his affidavit of the true amount due thereon, and tendered and offered to pay him and Smith, in lawful money, the amount they had paid at the sheriff’s sale, with interest thereon at the rate of seven per cent, per annum; and that Ballard examined the papers presented to him, made no objection to their sufficiency, but wholly refused to retain and keep them, or to accept and receive the money so tendered and offered. This is really a contest between a 'junior judgment creditor [318] and tbe purchasers at the sheriff’s sale. The sheriff is but little more than a nominal party, having no interest in the controversy unless he is really confederating with the other defendants, and favoring them to the prejudice of complainant’s rights. If he is doing that, he is acting a very unworthy part for a public officer. The objection, then, that the bill is defective for not alleging that the papers were left with' Smith & Ballard, the purchasers at the sheriff’s sale, comes from those very persons who refused to retain and keep them when presented by the complainant. True, the papers were not presented to Smith, but the bill alleges they were presented at the office of Smith & Ballard, who were in partnership, and had made the purchase upon the partnership account. Under these circumstances a presentation of the papers and tender of the money to one, must have the same legal effect as though presented to both. Now, the bill is most distinct and unequivocal in the allegation that the requisite papers in due form were presented to Ballard, examined by him, and by him refused. Does not the objection, then, that they were not left with him, in strict and literal compliance with the language of the statute, come with bad grace from those who refused to retain and keep them ? Why were not the papers left with Ballard ? The bill furnishes the answer. He refused to receive them. That being the case, they ought not now to be permitted to stand upon this objection. Undoubtedly the right to redeem lands sold under an execution is one given by statute, and a party seeking to avail himself of the benefits of the statute, must comply with the conditions prescribed in it. Sec. 99, chap. 102, R. S.; 2 Comst. R. 490; 20 Wend. R. 558; 19 id. 87; 18 id. 598. But was there not a substantial compliance with it in this case ? The equities of other parties are not involved in the question. Were other creditors before us, and did it appear that their interests had been injuriously affected in consequence of the papers not being actually left with Smith & Ballard, notwithstanding their refusal to receive them, the aspect of the case might be changed. Upon that point, however, we express no opinion. As it is, we think the allegations in the bill sufficient. Another objection, is taken to the bill, that it does not appear [319] from it wbat sum, if any, was tendered by tbe complainant to tbe purchasers. Tbe bill states that Smith & Ballard bid off tbe property at the sheriff’s sale for $1,027, and in a subsequent part of tbe bill it further states that the amount paid by them at the sheriff’s sale apd interest at 7 per cent, per annum, was tendered Ballard. The amount tendered is not set forth with that certainty and precision requisite in pleadings at common law, yet under these allegations proof of the amount tendered might be given in evidence should issue be taken upon them. “ Certainty to a common intent, is the most that the rules of equity ordinarily require in pleadings for any purpose.” Story's Eq. Plea., sect. 241; 3 Wooddeson, sect. 55, p. 370; 1 Barb. Ch. Prac. 38. It cannot be denied that the relief sought for by the complainant is of an equitable nature, and -such as a court of equity alone can give. He asks that the deeds given by the sheriff to Smith & Ballard, and by them to others, be set aside and canceled, as constituting a cloud at least upon his title, should he obtain a sheriff’s deed. He furthermore contends, that all these deeds were given with a full knowledge of his rights, and being subject to existing equities, that they.are null and void as to him, and should be so declared by the court. Matters of this kind are only cognizable in courts of .equity. Ordinarily, a party entitled to a sheriff’s deed, proceeds by mandamus against the officer to compel him to give it, probably because that remedy is more prompt and entirely efficacious. But it is evident that in this case the complainant has not a full and adequate remedy at law. And it would be a hardship upon him, and multiply suits to the disadvantage of all parties, should he be compelled to proceed by mandamus against the sheriff, and in equity against the other defendants. If a full and complete remedy as to all the parties existed at common law, it would constitute a good ground of demurrer to the bill. But it is not so. And a court of equity having taken jurisdiction for one purpose, will retain it to do complete justice between the parties. 1 Story's Eq. Jus., sec. 64, K. note; 10 J. R. 595 ; 17 id. 388; 3 Bro. Chy. Rep. 218; 7 Ves. 19; 9 id. 464. .Fraudulent design and combination are alleged to exist between the sheriff and other parties, to the prejudice of complainant’s rights. The sheriff is. implicated with the other parties in the charges made in the'bill, and he will have full op [320] portunity of meeting these charges and of availing himself of every defence in this suit. For these reasons, we are of the opinion that his demurrer should not be sustained, upon the ground that complainant has an adequate remedy at common law. We cannot see that it would be very material for the bill to allege that the sheriff had notice of complainant’s rights before he made and executed the deed to Ballard & Smith; but if it was, it is so charged in the bill. It states that the de'ed was executed and received by the parties thereto, with full knowledge of the complainant’s claim, and for the express purpose of defrauding him out of the premises. The only remaining objection necessary to be noticed is, that it does not appear from the bill that Everts was the acting sheriff of Outagamie county, and that as late sheriff he had no authority to execute a conveyance to the premises. This. objection goes upon the idea that under our statute the acting sheriff is the person to execute conveyances for lands sold under execution. Section 101, chap. 102, B. S., however, is very clear and explicit, that when the deed becomes due by the expiration of the time limited in the act to redeem, that then the officer making such sale shall complete the same by executing a conveyance of the premises so remaining unredeemed, either to the original purchaser, or to any creditor who may have acquired title of such original purchaser. This section can have but one meaning, that is, that the officer, or perhaps, more properly speaking, the individual making the sale, should perfect it by giving the deed. It has been suggested that there is a manifest inconsistency and conflict between this provision and section 117 of the same chapter, but I am unable to see any. The latter section provides that not only the officer or individual making the sale might execute the conveyance, but likewise his successor in office. The former sheriff might die, remove from the country, or become incapable irom bodily infirmities of completing the sale; and thus the statute has wisely provided that his successor in office may do it. The two sections appear to me to be perfectly consistent. It follows-' from the view we have taken of the case, that the order of the Circuit Court, sustaining the demurrer to the bill, must be reversed, with costs.