It can not be denied but that it was competent for Hubbell and Miller, as between themselves, at any time after the sale made by the sheriff, to make any contract which they might deem proper, postponing, varying, or wholly releasing the rights of Hubbell as such purchaser, given by the statute. But unless such agreement should be made within a year after the sale, and had the effect of a redemption by Miller, it could not affect the right of any other creditor of Miller who should, within the fifteen months, recover a judgment against him, being a lien upon the premises, to redeem from Hubbell as such purchaser under the provisions of the statute. (2 R.S. 371, § 51.) As between the judgment debtor and any other person who should become his creditor by judgment, c. within the fifteen months, aredemption within the year after the sale, by the debtor, c. is the only mode prescribed by law to prevent the interest which vested in the purchaser by the sale from being acquired within three months after the expiration of such year by any other creditor of the judgment debtor, (having a judgment, c. being a lien upon the premises,) by paying to the purchaser the sum of money which he paid on such sale, with interest. (2 R.S. 370, §§ 45, 49-51.) Sections 45, 46, 49 and 50 provide that the judgment debtor, c. within one year from the time when such sale shall have been made, may redeem the sale by the payment to the purchaser. c. of the sum of money which was bid on *Page 564 the sale with interest on such sum from the time of sale, at the rate of ten per cent a year. And upon such payment being made by any person so entitled to redeem any real estate so sold, the sale of the premises so redeemed, and the certificates of such sale, shall be null and void. And in case the persons so entitled shall omit to redeem the premises so sold, or any part of them, within the year before prescribed, then the interest vested in the purchaser by such sale may be acquired within three months after the expiration of such year, by the persons and on the terms thereinafter prescribed.
It was no doubt competent for Miller, by an agreement with Hubbell during the year, to redeem the sale by other means than the actual payment in money of the sum bid on the sale with interest, as prescribed by the statute. But in order to have the effect of a redemption, whatever the parties should agree upon as a substitute for actual payment, must be agreed and intended to be given and received as payment or satisfaction of the sum bid with interest, so that as well the sale as the certificates of sale would become void thereby. No agreement between Miller and Hubbell, in respect to the rights of either variant from such as prescribed by law, under the sale, leaving the sale and certificates of sale in force for any purpose as such, could have the effect to divest any of Miller's judgment creditors, who would otherwise have a right to redeem from Hubbell, within three months after the expiration of a year from the sale, of such right; for it depends not upon the volition of the debtor or purchaser to be exerted in any other manner than by a redemption of the sale, but rests upon the statute and can not be defeated otherwise than by a compliance with its provisions.
It can not admit of a doubt, but that if there had been no redemption by Lewis or any other judgment creditor of Miller, within the time prescribed by the statute, and Miller had omitted to pay to Hubbell the amount bid by him with interest annually, within or at the expiration of three years from the time of the sale, that Hubbell would have had the right to take a deed from the sheriff, as such, for the conveyance of the premises to him pursuant to his purchase, by which he would have acquired *Page 565 all the title and interest which Miller had in the premises on the day of the docket of the judgments under which the sale was made, or which he had afterwards and prior to the sale acquired; notwithstanding his covenant with Miller; for the reason that his purchase would not have been redeemed, discharged or relinquished. Thus circumstanced, Lewis could not have availed himself of the lien which he had by his judgment upon the premises in any other way than by redeeming as he did, without incurring the hazard of wholly losing it, by Miller's omitting to pay Hubbell within the terms of his covenant. If instead of redeeming he had procured the premises to be sold under an execution upon his judgment, and had become the purchaser, and after the expiration of fifteen months, no redemption having been made, had taken a deed from the sheriff for the conveyance of them to him, his title might have been defeated subsequently by the failure of Miller to pay Hubbell, by a deed from the sheriff to Hubbell for the conveyance of the premises to him pursuant to his purchase.
If the agreement or covenant of Hubbell with Miller of the 25th of September, 1845, be construed according to its sense and meaning, as collected from its terms, understood in their plain, ordinary and popular sense, there is no room to say that it is a mortgage, or in the nature of a mortgage, or that it amounted to a redemption of the sale, or as evidence of it. It carefully avoids any change of the legal effect of the sale made by the sheriff to Hubbell, except to extend to Miller a right, so far as Hubbell could, as such purchaser, control it, to redeem the sale from him until the expiration of three years from the day of sale, by paying to him the sum bid by him with annual interest, and covenanting in the meantime to refrain from perfecting his title to the premises as purchaser, pursuant to the sale; and upon the condition that Miller paid him the amount bid by him with annual interest at the expiration of said three years, then to release and discharge the premises from all claim which he had acquired by reason of said sale.
Neither Miller or Hubbell had the power, as I have before remarked, if disposed to do so, to cut off or affect the right of *Page 566 any judgment creditor of Miller to redeem from Hubbell and thereby acquire his interest as a purchaser, within three months after the expiration of a year subsequent to the sale, except by a redemption being made pursuant to the provisions of the statute, within the year.
In respect to the ground taken, that the redemption made by Lewis is void, because Perrin recovered his judgment against Miller fraudulently, it is sufficient to remark that it is wholly unsupported by the evidence in the case.
As to the remaining ground insisted on by the complainant, that the papers produced to the sheriff by Lewis as evidence of his right to redeem were defective, it is proper to say, that the right of redemption can not be successfully asserted by a judgment creditor, unless he complies substantially with the requisites prescribed by the statute. (Van Rensselaer v. TheSheriff of Albany, 1 Cowen, 510; Walker v. Harris, 20Wend. 555; The People v. The Sheriff of Broome, 19 id. 87; The People v. Ransom, 2 Hill, 51.)
It is alledged in the bill and admitted by the answer, that on or about the seventh day of October, 1845, Perrin commenced a suit against Miller in the court of common pleas of Monroe county, in an action of assumpsit, and that such proceedings were had therein, that afterwards, on the eighth day of September, 1846, he recovered a judgment therein against Miller in said court for $171,60 damages and $36,68 costs, and that the same was on that day docketed in the office of the clerk of said county, and that Lewis, on the 15th day of December, 1846, in order to entitle himself to acquire the title of Hubbell to the premises mentioned, produced to and left with the said sheriff, who made the sale, as evidence of his right, a paper purporting to be a copy of the docket of said judgment recovered by said Perrin, certified in the manner following:
"Monroe common pleas. Darius Perrin v. Andrew Miller. Damages, $171,60; costs, $36,68. Docketed, September 8, 1846, at 10, A.M.L. Farrar, attorney.
"State of New-York, Monroe county, ss. Clerk's office, Rochester, December 10, 1846. I certify the preceding is a true copy *Page 567 of the docket of an original record of a judgment on file in this office. In testimony whereof, I have hereunto set my hand and affixed the seal of the court of common pleas of said county, this 10th day of December, 1846.
[L.S.] S.A. LEACH, deputy clerk."
It is objected, first, that this certificate does not correctly set forth the name or style of the court in which the judgment was rendered; in other words, that there is no such court as the "Monroe common pleas;" second, that the certificate does not show against whom the judgment was rendered; and third, that the docket is not certified by the clerk of the court, but by S.A. Leach; and if a deputy clerk was competent to certify, it did not appear that he was such deputy, or that the clerk was absent when the certificate was made. The two first objections do not require a particular notice. They are clearly not well taken.
As to the other objection, it is made necessary by 2 R.S. 373, sub. 1 of § 60, that a copy of the docket of the judgment, c. be "duly certified by the clerk of the court, or of the county in which the same is docketed." By 2 R.S. 210, § 14, clerks of the several counties (except the city and county of New-York,) were made clerks of the courts of common pleas and general sessions of their respective counties. By 1 R.S. 376, § 56, every county clerk is required to appoint some proper person deputy clerk of his county, and by § 58, and the laws of 1831, p. 279 § 1, it is provided that whenever the county clerk shall be absent from the county or from his office, c. his deputy may perform all the duties appertaining to the office of clerk of the county, except that of deciding upon the sufficiency of sureties for any office. These references show that the deputy clerk of the county of Monroe was vested with complete authority to certify a copy of the docket, in the absence of the clerk from his office, c. The certificate purports to have been signed by the deputy of the clerk, attested by affixing the seal of the court of common pleas of Monroe county.
The deputy is a public officer acting under his official oath, and the law will presume that the clerk was either absent from his office, or incapable of performing the duties of his office at *Page 568 the time the deputy signed the certificate. The certificate isprima facie evidence as well that the deputy signed it, as of his authority to act. (Cowen Hill's Notes, 1247 to 1250;Downing v. Ruger, 21 Wend. 178; Thurman v. Cameron, 24Wend. 87.)
It is also objected that the certificate is defective, because it does not certify that the copy had been "compared [by the clerk] with the original, and was a correct transcript therefrom and of the whole of such original." It is a sufficient answer to this objection to say, that in The People v. Ransom, (4Denio, 145,) affirmed in this court, (2 Comst. 490,) it was expressly adjudged that such objection could not be sustained. Upon the whole, I am of opinion that the decree of the court below should be affirmed.
BRONSON, Ch. J. concurred in that opinion.
Decree reversed.