People ex rel. Post v. Fleming — 2 N.Y. 484

Majority

p. 484

The People, ex rel. Post, vs. Fleming, sheriff of Tioga.

Headnote

Under the statute relating to the redemption of lands, a senior judgment creditor may acquire the interest of a purchaser at a sale under a junior judgment; and the rule is the same, although the redeeming creditor also held the judgment on which the sale was made.

A creditor in the judgment under which the land is sold by the sheriff, cannot use that judgment to acquire the rights of the purchaser; but if he have another judgment he may avail himself of that in the same manner and on the Same terms as any other creditor. {Stat. § 58.)

Where there were five judgments which were successive liens against the same debtor, and his land was sold under the first, second and fourth, for a sum sufficient to pay the first two and a part of the' fourth, and the respective creditors in the third and fifth judgments, in order to acquire the title of the purchaser, each delivered the proper papers and each paid the amount of the bid, but neither paid the other’s judgment; held that the creditor in the third judgment was entitled to the conveyance.

Where a sheriff makes a sale of land on several judgments, the purchaser takes his title under each, and therefore another judgment creditor, in order to acquire the rights of the purchaser, must be entitled to do so in respect to all of the judgments on which the sale was made.

The provision of the statute, requiring the assignee of a judgment seeking to acquire the rights of the purchaser at sheriffs sale, to produce copies of all the assignments of the judgment, refers to assignments by deed or writing, and not to assignments by operation of law.

And therefore, where the plaintiff in a judgment died intestate, and the assignee of his administrator sought to acquire the right of the purchaser; held, that he was not bound to produce the letters of administration.

p. 485

If it is necessary in such a case to prove that the assignor is in fact the administrator of the plaintiff in the judgment, (as to which quere,) it may be done by affidavit.

Where a statute requires an oath from the principal, it cannot be satisfied by the oath of the agent. Per Strong, J.

And therefore, the agent of the assignee of a judgment, unless he is also a witness to the assignment, cannot, under the statute for the redemption of lands, (§ 60, sub. 2,) verify the assignment. Per Strong, J.

But where there is no subscribing witness, the assignment may be verified by any person who saw it executed and delivered. Such a person is a witness to the assignment within the meaning of the statute.

A sheriff cannot resist the granting of a mandamus to compel him to execute a deed, on the ground that he has already executed one to another person, who has sold and conveyed the premises to a bona fide purchaser.

People v. Fleming, 4 Denio 137 , affirmed.

Appeal from the supreme court, where the proceeding was by mandamus issued on the relation of Post against the defendant, sheriff of the county of Tioga, to compel the execution of a deed to the relator of land sold under execution. The case was this: There were seven judgments against Daniel Hart and others, which were docketed in the following order: 1, in favor of Burnham; 2, in favor of Dana; 3, in favor of Biddle; 4, in favor of the same ; 5, 6, and 7, in favor of the Bank of Ithaca. Executions were issued upon the judgments 1, 2, and 4, and the lands were sold by the sheriff on the 15th of J tnuary, 1842, to Isaac S. Kellum. From the proceeds of the sale the Burnham and Dana judgments (1, 2,) were satisfied; and the sum of #575 was applied on the Biddle judgment, (4;) leaving a balance of more than #3000 still due on that judgment.

On the 15th of April, 1843, the relator, by his agent, applied to the sheriff for the purpose of acquiring the title of the original purchaser. The agent presented to the sheriff copies of the dockets of the two Biddle judgments .(3, 4,) with an affidavit of the amount due on‘them respectively. The agent also made and presented to the sheriff an affidavit containing the copy of an assignment of each of the Biddle judgments to the relator, by “Henry Drinker, administrator of estate of James C. Biddle, deceasedand by the affidavit the agent testified in relation to each of the assignments, “ that the said Henry Drinker was

p. 486

at the time of executing the said assignment, and now is, sole administrator of the said James C. Biddle, the plaintiff in the said judgment, who is deceased; and that this deponent saw the said Henry Drinker execute and deliver the said assignment above copied, and was a witness thereto. There was no subscribing witness to either of the assignments. The agent paid the proper sum to the sheriff for the purpose of acquiring the title of the original purchaser. On the same day the Bank of Ithaca presented the proper papers, and paid the necessary sum to the sheriff for the purpose of acquiring the rights of the original purchaser. But the bank paid nothing by way of purchasing from the relator. On the 9th of June, 1843, the sheriff gave a deed to the bank; and between that time and the January following, when the mandamus issued, the bank sold the lands to bona fide purchasers. The mandamus required the sheriff to execute a deed to the relator, or show cause, &c. The relator demurred to the return, and the defendant joined in demurrer.

The supreme court gave judgment in favor of the relator, (see 4 Denio, 137 ,) and the defendant appealed to this court.

B. D. Noxon, for appellant.

Geo. Sidney Camp, for respondent.

It was decided by the supreme court in 1827, (Ex parte the Peru Iron Company, 7 Cowen, 540,) that a senior judgment creditor may acquire the title of a purchaser at a sheriff’s sale of land under a junior judgment. That decision has remained undisturbed, and, so far a's I know, undisputed, until the discussion was had in this case. It has no doubt constituted an extensive rule of action, which should not therefore be overthrown without the most cogent reasons. The language of the statute is broad enough to include both senior and junior judgments. It says (§ 51) that any creditor having a decree or judgment rendered at any time before the expiration of fifteen months, which shall be a lien upon the premises sold, may ac

p. 487

quire the right of the original purchaser. It is true, that the statutory remedy may not ordinarily be requisite to protect the rights of the senior creditor, as they are not affected by the sale under a junior judgment. But it will save the expense of a subsequent sale, and secure the purchaser, at all events, the reimbursement of the money advanced .by him, which he might otherwise lose altogether, and may therefore result beneficially. Besides, when the sale has been effected under two judgments of different dates, and there is an intermediate judgment creditor, the right of substitution given by the statute is absolutely necessary to protect his interest, as otherwise he would be precluded from enforcing his original lien by the sale under the first judgment. Possibly injurious consequences may occasionally result from this construction of the act, but they are not of sufficient consequence to require us to give to its language any other than a literal interpretation.

It is quite clear that the relator could not acquire the rights of the original purchaser in the property, on the judgment under which his execution had been issued and the sale had been made; (§ 58;) but it is equally clear from the same section of the statute, that he might avail himself of his other judgment “in the same manner and on the same terms as any other creditor.”

I cannot, however, agree with the court below, that the relator, even if he had been precluded from the right to acquire the title of the purchaser under his own senior judgment if the sale had been solely under his junior judgment, might nevertheless have exercised it in this case, as the sale was also made under two judgments in favor of others of a still prior date. The sale was a single act under the three judgments, and the purchaser acquired his title under each, and had a right to resort to them conjointly or separately to retain or enforce it.

The statute (§ 50) confers the right which I am considering upon any creditor having in his own name or as assignee, representative, trustee or otherwise, a decree or judgment. By specifying both assignee and representative, it was no doubt designed to draw a distinction between the two. “ By representatives,” was meant assignees in law, such as executors and admin

p. 488

istrators, (27 Henry 8, 2 Dyer 6,) while the term assignee was designed to specify only such as are created by deed. This is the proper construction where both terms are used And when the word assignee only occurs, and there are both an assignee in deed and in law, (such as an executor or administrator,) the application of the term is made to assignees in deed only. (Jac. Law Dic. title “ Assigns or Assignees.”) The statute does not require any proof of the identity of the original judgment creditor, or of the character of the representative. If the officer making the sale, purchaser or creditor, can exact what the statute does not, it should be reasonable proof only. The affidavit of the applicant is sufficient as to the amount due, and I can see no reason why it should not be adequate proof of identity or representative character. The danger of imposition in either case is very slight.

The provision of the act requiring the production of a copy of the assignment of a decree or judgment must of course refer to assignments by deed or other written instrument. It could not be designed to include assignments by operation of law, as they are not in writing. Letters of administration are not an assignment, nor do they per se transfer that title to the personal property left by the deceased. That results from the decease of the former proprietor, and the appointment of his administrators. 1 am satisfied that the legislature designed to use the term in its ordinary acceptation. “ An instrument setting over or transferring the interest a man has in any thing to another.” (Jac. L. Dic. tit. Assignment.”) It was not therefore necessary for the relator to produce to the sheriff a copy of the letters of administration.

The act requires that where the copy of an assignment is produced by the creditor, it must be verified by his affidavit or tne affidavit of some witness to the instrument. It has been supposed that where the paper is presented by an agent, its execution may be proved by his affidavit, although he may not nave been in the language of the act, “ a witness to- such assignment.” To that I cannot assent. Where an act can be as well performed by an agent as by the principal, the personal agency of the latter is not required, but it is different where from

p. 489

the nature of the transaction there can be no effectual substitution. The personal knowledge from which the party must swear cannot be transferred to another, nor can the responsibility of an oath or the liability to punishment for perjury. I am clear that where a statute requires an oath from the principal it cannot be satisfied by the oath of an agent.

As the relator did not make an affidavit in person, it was necessary that it should be done by some witness to the ass'gnment. By the word witness I understand the statute to mean some one who was present at the execution of the instrument and is competent in law to prove it. It is a sound and the only safe rule in the construction of a statute, to consider it as using words according to their legal interpretation. If therefore there had been a subscribing witness in this case, and his affidavit could have been procured, no other witness would,have been competent. But the statute does not go the length of saying that if there was not a subscribing witness the execution of the instrument could not be proved by any other person. Any one who saw the party subscribe the assignment was in fact a witness to it, and would, when there was no subscribing witness, be competent to prove it in a court of justice. I am satisfied that a witness who would be competent to prove the execution of the assignment in ordinary cases, and whose description corresponds with the phraseology of the act, could make the requisite affidavit ir. this case.

The assignment of the judgment was brief and informal, but it was sufficient to pass the title to the relator. This is all .wnich the statute requires. The certificate of the clerk designates the judgment with great precision, and it is also identified by the affidavit of the agent.

It is no valid answer for the sheriff to say that innocent persons may suffer if he is set right. He must do his duty at all events, and that requires that he should execute a deed to the relator.

The judgment of the supreme court must be affirmed.

Judgment affirmed.

Cases cited

People ex rel. Post v. Fleming 4 Denio 137 N.Y. Sup. Ct. p. 485