Silliman v. Wing — 7 Hill & Den. 159

Majority

p. 159

Silliman v. Wing and others. Harris & Brown v. The same. Bank of Whitehall v. The same. Fake v. Wing.

Headnote

A voluntary payment, made under a mistake of law, but with full knowledge of all the facts, and not induced by any fraud or improper conduct on the part of the payee, cannot be recalled. Per Bronson, J.

A creditor, in order to redeem lands sold under execution, must comply strictly with the requirements of the statute. Per Bronson, J.

Where lands are sold at the same time under several judgments, for a sum sufficient to satisfy them, a creditor cannot redeem by depositing with the sheriff merely the amount of one of the judgments with interest, though the other judgments are younger than his own; the purchaser being entitled to the whole sum paid on the sale &c.

Nor can such creditor, after depositing the sum paid by the purchaser with the sheriff, compel the application of any part of it to his own judgment.

The sheriff of Rensselaer, by virtue of executions on the judgments in the three first above entitled suits, sold the lands of the defendant Wing, to George Harris, on the 9th of June, 1843, for the sum of §3340, which was sufficient to satisfy all three of the executions, and they were soon afterwards returned satisfied. The payment of the purchase money was arranged between the purchaser and the owners of the three judgments. The sheriff executed a certificate of the sale, as upon all three of the executions, to Harris, who assigned the same to C. L. Tracy on the 3d July, 1844. At the time of the sale about §690 was due on the judgment in the first above entitled suit, and the/ residue of the amount bid, about §2650, was for the amount due on the judgments in the second and third suits.

John S. Fake had a judgment against Wing which was junior to the judgment in the first above entitled suit, and senior to the two other judgments under which the sale was made. On the 9th day of September, 1844, Fake presented the necessary papers, and paid to the sheriff the sum of §3636,45, for the purpose of acquiring the interest of the purchaser, or his assignee,

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under the sale. Fake at the same time gave the sheriff notice that he claimed the right to redeem by paying the amount of the first judgment with interest; and he requested the sheriff, after satisfying that judgment with interest, to pay over and apply the residue of the $3636,45 on his (Fake’s) judgment, or on an execution upon that judgment which was put into the sheriff’s hands at or about the time of the redemption. The sheriff declined applying any part of the money on Fake’s judgment; and Fake thereupon obtained an order staying the money in the sheriff’s hands until this court could be moved on the subject. On the 19th September, 1844, the sheriff gave Fake a deed as a redeeming creditor, which recited a sale on the three judgments, and the assignment of the certificate to Tracy.

S. Stevens, on behalf of Fake,

now moved for an order that the sheriff, after paying to the purchaser or his assignee the amount due on the first judgment ivith interest, should apply the balance of the money in his hands to the judgment and execution of Fake, on which more than enough was claimed to be due to absorb all the money.

N. Hill, Jr., contra.

By the Court,

If we entertained the opinion that Fake paid more money than was necessary to enable him to acquire the interest of the purchaser, there would be great difficulty in saying that he can now recall any part of it. It was a voluntary payment, made with full knowledge of all the facts, and not induced by any fraud or improper conduct of the other party. Fake settled for himself a question of law, and concluded to pay the whole amount of the purchase money, instead of paying only the amount of the first judgment, and standing upon such right as that would give him. I take the general rule to be well settled, that money paid under such circumstances cannot be recovered back.

But our decision will be put upon the broader ground, that Fake 'paid no more than was necessary for the attainment of his

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object. The debtor may redeem within one year by paying i£ the sum of money which was bid on the sale.” (2 R. S. 370, § 45.) If he does not redeem, a creditor having a lien may acquire the interest of the purchaser by paying “ the sum of money which was paid on the sale.” (§ 51.) The whole sum is to be paid without any reference to the priority of liens. If this seems to be a hard rule in the case of Mr. Fake, the answer is, that his right to purchase on any terms depends upon the statute; and it is settled that there must be a strict compliance with its requirements. (Waller v. Harris, 20 Wend. 555 ; The People v. Covell, 18 id. 598 ; The People v. Collier, 19 id. 87.) If he could not purchase without paying the whole sum which was paid on the sale, it is quite clear that he cannot now recall any part of the money.

It is true that two creditors whose judgments are junior to the judgment of Fake, have in effect gained a preference over him. But diligence would have avoided that result. When he saw that the sheriff was proceeding to sell under judgments that were both older and younger than his own, he should have placed an execution in the hands of the sheriff, and had the sale under his judgment as well as the others. In this way he would have secured a continued preference over the two junior judgment creditors. As it is, we can give no relief.

Motion denied.

Cases cited

Waller v. Harris 20 Wend. 555 N.Y. Sup. Ct. p. 161