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Ex parte Newell

4 Hill & Den. 608 Court N.Y. English

Delivered by Bhonsost, J.

Contents

Majority

p. 608
Ex parte Newell, receiver, &c.

Headnote

Where a junior creditor complied with the requisites for redeeming from the purchaser b.y reimbursing the amount of the bid, &c., and, on the same day, a senior creditor who had previously become assignee of the original certificate of sale, presented to the sheriff the proper evidence of that fact and of his right AS creditor; held, that he was entitled to the sheriff’s deed without paying any money.
The affidavit of a redeeming creditor as to the amount due on his judgment, though made five days before presenting the papers to the sheriff, is sufficient.
Where such creditor is an assignee of the judgment in virtue of which he seeks to redeem, though the statute in terms requires him to present to the sheriff a copy of his assignment &c., (2 R. S. 373, § 6, subd. 2,) it is sufficient if the original be presented. Semble.
An acknówledgmeñl of the Assignment, certified by an officer authorized to take acknowledgments of deeds, is not a sufficient verification of it for the pur., pose of redeeming.
Where a copy of an assignment was verified by affidavit as follows : “ This de. ponent is the assignee and owner, according to the annexed copy of the transfer thereof by &c., [naming the assignor,] in good.faith, of the said judgmentheld, a sufficient verification, though unskilfully drawn.
Redemption of lands sold on execution. On the 23d of April, 1841, the sheriff of Erie sold certain lands in that countyjm
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a judgment against Isaac S. Smith and others, docketed May 5, 1837 ; and William D. Taber became the purchaser at the sum of $133,76. On the 8th of March, 1838, Smith mortgaged the lands to the City Bank of Buffalo, for securing the payment of $15,120. On the 23d of July, 1842, Newell, as receiver of the City Bank of Buffalo, redeemed in virtue of the mortgage, by presenting the necessary papers and paying the proper sum to the sheriff. On the same day (23d of July, 1842) Stephen Smith, by his agent, delivered to the sheriff the certificate of sale to Taber, with an assignment thereof, duly acknowledged, from Taber to said Smith. {Stat. 1835, ch. 189.) Between the time that the judgment was recovered on, which the land was sold, and the giving of the mortgage to the City Bank, five several judgments were recovered either against Isaac S. Smith alone, or against him and others, all of which judgments the said Stephen Smith, on the said 23d of July, claimed to own as assignee thereof. He presented to, and left with the sheriff, a copy of the docket of each of the judgments duly certified, and his own affidavits of the amount due on each of the judgments. As to four of the judgments, he produced what purported to be the original assignments to him from the judgment creditors, severally acknowledged before an officer authorized to take the acknowledgment of deeds, but without any other verification. In some of the affidavits of the amount due, he stated “ that this deponent is the assignee and owner in good faith of said judgment.” He did not produce a copy of any of those assignments. The fifth judgment was in favor of the Onondaga County Bank, and as to that, Smith produced what purported to be copies of two assignments of the judgment from the bank to himself, with his own affidavit of the amount due on the judgment, which contained the following words : “ that this deponent is the assignee and owner, according to the annexed copies of the transfer thereof by the Onondaga County Bank, in good faith, of the said judgment, and that the amount of the sum now due upon said judgment for principal and interest is $17,150,88, according to the best of this de
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ponent’s knowledge and belief.” Smith paid no money to the sheriff—claiming that the redemption was complete without it, as he was the owner of the certificate of sale. He resided at Syracuse, and his affidavits of the amounts due on the judgments were made five days before his agent presented the papers to the sheriff at Buffalo.
T. Burwell ty E. F. Smith now moved for a mandamus to the sheriff,
requiring him to execute a deed to Newell as receiver. They insisted that Stephen Smith had not redeemed, for the following reasons, viz : 1st. As to four of the judgments he had not produced copies of the assignments ; 2d. As to the fifth judgment there was no sufficient verification of the papers presented as copies of the assignments ; 3d. He paid no money •, and 4th. The affidavits of the amount due on the judgments respectively were made five days before he claimed to redeem. ■
S. H. Hammond) contra,
after answering these objections, insisted that Newell had not redeemed, 1st. Because he had not shown that he was duly appointed receiver, as' the bond was given to the register in chancery when it should have been given to the people ; and 2d. Because as receiver he had no power to redeem.

By the Court,

In the view which we have taken of the case, it will be assumed that there was a good redemption by Newell as receiver, but without deciding the question.

As the five judgments under which Stephen Smith claimed 'to redeem were all older than the mortgage, he had no occasion for redeeming from Newell. He had purchased and taken an assignment of the original certificate of sale to Taber, and presented the proper evidence of that fact to the sheriff when he attempted to redeem. (Stat. 1835, p. 210, § 1,2.) It was not necessary for him to pay the original purchase money to the sheriff, for the reason that, as owner of the certificate, he

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stood in the place of Taber, and was. himself entitled to the money. ■ If he had laid it down, he might have taken it up again the next moment, and the law will not require that he should go through with so idle a ceremony. This point was involved in The People v. Ransom, ( 2 Hill, 51 .) That case also disposes of the objection, that the affidavits stating the amount due on the several judgments were made five days before the papers were presented to the sheriff.

As all of the judgments were older than the mortgage, it was enough to defeat the redemption by Newell if the papers presented by Smith were right as to any one of the judgments. As to four of them, he presented what purported to be original assignments from the several judgment creditors, when the statute only provides for copies. (2 R. S. 373, §60.) Although an original instrument is generally deemed higher evidence than a copy, the legislature has thought proper in this instance to give a different rule; and, within the principle decided by the court of errors in Waller v. Harris, ( 20 Wend. 555 ,) there is some difficulty in getting over the objection that copies of the assignments should have been produced.[1] But the doctrine of that case was some-what shaken by the subsequent decision of this court, that the affidavit of the amount due may be made before the time has arrived when the creditor has a right to redeem. (The People v. Ransom, 2 Hill, 51 .) My brethren are inclined to the opinion that the papers were sufficient, if it were not for the further difficulty that there was no verification of the papers purporting to be original assignments. The acknowledgments of those papers certified by public officers proved nothing, for the reason that the statute requires a different mode of verification. In some of the affidavits of the amount due, Smith deposed that he was “ the assignee and owner in good faith of the judgment;” but he said nothing about the execution or authenticity of the papers which were delivered to the sheriff. There was no evidence

(a) (a) See Miller v. Woodworth, ( 3 Hill, 529 .)

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upon that subject, and without it the redemption could not be made.

The remaining judgment was recovered by the Onondaga County Bank, and as to that, Smith presented what purported to be copies of two assignments of the judgment to him by the bank ; and the only question is on the verification. The statute requires the redeeming creditor to present “ a true copy of ' all the assignments &c., verified by his affidavit, or by the affidavit of some witness to the assignment. ” This language cannot be satisfied without proof, either by the party or witness, that the paper produced is a copy of an original instrument which was duly executed; and there is some difficulty in saying that this affidavit proves so much. But I am inclined to think it is sufficient. The words are, “that this deponent is the assignee and owner according to the annexed copies of the transfer thereof by the Onondaga County Bank, in good faith, of the said judgment. ” The affidavit was not very skilfully drawn, and a slight transposition of the different members of the sentence, without the addition or omission of a single word, will make it express more clearly what I think the party intended to affirm. It will then read, “that this deponent is the assignee and owner, in good faith, of the said judgment, according to- the annexed copies of the transfer thereof by the Onondaga County Bank. ” The party swears positively that he is “the assignee and owner” of the judgment, and if it had not been duly assigned, he may be convicted of perjury. And further, that he is the assignee and owner of the judgment, “ according to the annexed copies of the Transfer thereof by the Onondaga County Bank. ” This cannot well mean less, than that the papers annexed are “ copies of the transfer ” by which he became “ the assignee and owner ” of the judgment. Although the question is not entirely free from difficulty, we think the affidavit sufficient ■ and as there was a good redemption under this judgment, Stephen Smith, and not the relator, is entitled to the sheriff’s deed.

As the case is one of some importance, and the relator may

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wish to review our decision, he may, if he shall so elect within thirty days, have an alternative mandamus for the purpose of putting the matter on record. Otherwise, the motion is denied.

Ordered accordingly.

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