Majority
p. 589Ex parte Newell, receiver &c.
Headnote
Where, after one creditor had redeemed lands sold under ajff./a., a second creditor, with a view of redeeming from the first, paid unconditionally to the sheriff the requisite amount, but immediately thereafter served an injunction in his own favor restraining the sheriff from paying it over; held, nevertheless, that he was entitled to the sheriff’s deed.Redemption of lands sold on execution. On the 4th of December, 1841, the sheriff of Erie sold certain lands in Buffalo on two judgments against Elisha C. Hickcox, one in favor of Samuel Stevens, and the other in favor of James Brisbane; and Brisbane became the purchaser at $1950. On the 23d of February, 1843, Samuel H. Addington, having three judgments against Hickcox amounting to about $4800, redeemed and became the purchaser of'the land, by presenting the necessary papers and paying to the sheriff the amount of Brisbane’s bid with interest, amounting to $2116,50. There was a judgment against Hickcox in favor of the City Bank of Buffalo which was older than either of those on which Addington redeemed; and, on the 1st of March, 1843, George Newell, receiver of the City Bank, redeemed from the sale by presenting" the necessary papers and paying to the sheriff the amount of
p. 590
Brisbane’s bid with interest—$2120,63. On the third day of the same month, Addington again went to the sheriff for the purpose of redeeming from Newell, and paid to the sheriff the amount claimed to be due ón the judgment in favor of the City Bank, being $1642. Previous to paying the money, Adding-ton had filed a bill against Newell in the court of chancery, alleging that the bank judgment had been satisfied, and obtained an injunction forbidding the sheriff to pay over to Newell the money which Addington might'pay to redeem, until the further order of the court of chancery. Addington first paid the money to the sheriff and took his receipt for the same, and immediately thereafter served the injunction on the sheriff, forbidding his paying over the money to Newell. The sheriff, being of opinion that Addington "had properly redeemed, executed a deed to him on the sixth of March, Newell had previously given notice to the sheriff and to Addington that he should claim the deed, on the ground that Addington had not redeemed.
E. F. Smith <$r T. Burwell now moved for a mandamus to the sheriff,
commanding him to execute a deed to Newell as receiver. They insisted that, in consequence of the service of the injunction, there was no redemption by Addington. It was like a conditional or qualified tender, or offering money with one hand, and then snatching it away with the other.
E. G. Spalding 8f D. Cady opposed the motion.
By the Court,
Whether the injunction was properly issued or not, is a question for the court of chancery. Assuming that it was regular, and that the money is stayed in the hands of the sheriff, we are still of opinion that there was a good redemption by Addington. He made an unconditional payment of the amount of the bank judgment, and the sheriff received and receipted the money before the injunction was « served. The redemption was then complete, and the subse
p. 591
quent service of' process to stay the money in the hands of the ' sheriff could not undo what had already been well done. It is not like the case of a tender trammelled with conditions, or an offer of payment without parting with the money. Addington put the money entirely beyond his own control. The sheriff received and now holds it for Newell, and is answerable for its safe keeping in the same manner as though the injunction had not been served. Should the chancery suit be decided in favor of the defendant, or the injunction be dissolved, Newell will then receive the full amount of his judgment; and he can only fail of obtaining the money because a court having cognizance of the matter may decide that the judgment had been satisfied prior to the redemption.
The money which Newell paid on redeeming from Brisbane is in the sheriff’s hands, ready for Newell whenever he chooses to ask for it. The sheriff also has the money to pay the bank judgment, which Newell will receive in due time, unless it should be found that the' judgment had been satisfied, and so was not a lien on the land.
Motion denied.