People ex rel. Austin v. Fralick

■Campbell J.: This is an application to compel Fralick, as sheriff, to execute to Austin a deed of certain premises sold on execution against George B. Russell and others. The execution sale was on a judgment in favor of Erastus Corning, who purchased the property. Buhl & Ducharme had a judgment on which a levy had been made after the first execution was levied, but before sale. The sale was made August 30, 1861. September 3d, 1861, a mortgage was made by Russell to Austin, the relator. November 10, 1862, Buhl & Ducharme paid Corning the amount due him, with interest, and took an assignment of his certificate o^ sale. On the last day allowed creditors to redeem, Austin, by his attorney, applied to the register of deeds and filed proofs of his mortgage interest, together with money to pay the Corning bid, but not to pay any portion of Buhl <fc Ducharme’s judgment. The sheriff refused to convey to Austin, on account of the claims of Buhl & Ducharme. The attorney of Austin was informed of Buhl & Ducharme’s claims before he attempted to redeem for his principal. The objection made by Austin to the validity of Buhl & Ducharme’s claim, is, that it does not appear that they furnished to Corning the proofs of their claim in the manner pointed out by section 3147 of the Compiled laws. The statute provides that judgment creditors may redeem from execution purchasers in such a way as to become subrogated to their claims, whenever the premises [238] remain unredeemed by the debtor or his assigns within-the twelve months allowed these. This payment to take-up the claim of the execution creditor is required to be accompanied by copies of the judgments relied on, and-an affidavit of the amount due. Application may be made to the register or sheriff, or to the purchaser himself. There is no provision declaring what shall be done-with the papers. Inasmuch as this payment by creditors can only be-made after the debtor’s redemption has run out, its effect is to allow the purchaser to be deprived of what may be an advantageous bargain, and it is only just that he-should not be • compelled to relinquish it without full proof of the right of the one who would supplant him. And he can not be compelled to receive any but full' proofs. But where the application is made to himself, and he is convinced of the right of the applicant, there-seems no good reason why he should be compelled to ask more proof. The proofs he • receives come into his-hands in his own right. He is not a public depository,, and the papers do not become public by the deposite. No one else has any right to them. It is different where the redemption is made through a public officer. He being-merely an agent by virtue of the law, must be guided by the terms of the statute; and papers intrusted to his custody become official, and enure to the benefit of such as may be concerned. But if the prior purchaser sees fit to allow a departure from the statute, a question may arise-how far any third person can object to it. We think that if Buhl & Ducharme were actually in a position to demand a transfer of the certificate, they must be protected when they have obtained it from the purchaser himself, whether they produced the statutory proofs or not. But it was claimed on the argument that, by taking an assignment, they debarred themselves of the right’; to [239] claim the position of creditors exercising a privilege under the statute. The creditor is said in the statute to “acquire the title,'> of the execution purchaser. Subsequent parties applying are directly termed “purchasers": §§ 3137-8 3142. By section 3146 it is provided that “upon such payment being made, the title of the original purchaser shall be thereby transferred to the creditor acquiring the same,” &c. This undoubtedly contemplates that the creditor may acquire the right without any formal transfer. But he would have a right to require some voucher for his payment. And, inasmuch as a transfer of title actually takes place, it is not easy to comprehend how it can be vitiated by expressing what the law implies. It would require strong evidence to justify a court in assuming that Buhl & Ducharme deliberately took this course to divest themselves of a right which could in no way compromise or prejudice them, while, on the other hand, its exercise might become valuable, and must necessarily have been so had the property been worth buying from Corning. Every presumption from the facts must tend to satisfy any reasonable mind, that the parties never intended to give up any rights; and we do not think they have done so unless such an intention appears. Having lawfully acquired the rights of Corning, the statute does not allow their purchase to be divested in favor of any claim accruing subsequently to their judgment, without payment of their own judgment in addition to the purchase money. Comp, L. § 3141; laws of 1861 pp. 134, 135. This, Austin did not attempt, although informed of Buhl & Ducharme’s claim. His payment therefore was inoperative, and gave him no rights. The judgment below must be affirmed, with costs. Ma rtin Ch. J. and Christiancy J. concurred. [240] Manning J.: The right of redemption is a statutory right, to be acquired in the manner pointed out by the statute, and in no other. The statutory requirements are conditions precedent, and may be insisted on not only by the purchaser at an execution sale, but by any one having a right to redeem who has done all the statute requires to enable him to redeem. A purchaser may waive these conditions as to himself; but he can not, by such waiver, give the person in whose favor it is made a priority over one who has complied with the statute. By paying Corning the amount of his bid, and taking an assignment of the sheriff’s certificate of sale, Buhl & Ducharme acquired the rights of Corning and nothing more. They acquired no rights under the statute, because they did not comply with its provisions. The language of the statute is peremptory. It is in these words: “To entitle any creditor to acquire the title of the original purchaser, or to become a purchaser from any other creditor pursuant to the preceding provisions, he shall present to, and leave with, such purchaser or creditor, or the officer who made the sale, or with said register, the following evidence of his right: 1. A certified copy of the judgment or decree under which he claims the right to purchase; 2. A true copy of all the assignments of such judgment or decree which are necessary to establish his claim > verified by his affidavit, or the affidavit of some witness thereto; 3. An affidavit by such creditor, his agent or attorney) of the true sum due on such judgment or decree, at the time of claiming such right to purchase.” Comp. L. § 3147. The following cases under a similar statute of the state of New York sustain the views above expressed [241] — Buck v. Fox, 23 Barb. 259 ; Hall v. Thomas, 27 Barb. 55; People v. Livingston, 6 Wend. 526 ; Waller v. Harris, 20 Wend. 555; Waller v. Harris, 7 Paige, 167-77; People v. Sheriff, 19 Wend. 87; Ex parte Bank o Monroe, 7 Hill, 177; People v. Covell, 18 Wend. 598; People v. Ransom, 2 Comst. 490. I think the judgment should be reversed, and a mandamus issued. Judgment affirmed.