Van Rensselaer v. Sheriff of Onondaga

The Justices, in delivering their opinions, spoke nearly as follows :

Sutherland, J.

The questions to be determined in this cause, arise upon amotion for a mandamus, to be directed to the Sheriff of Onondaga, commanding him to give a deed of conveyance of certain lands, situate in that county, to Sanders Van Rensselaer, who, on the 11 th of April, 1822, purchased these lands under an execution against one Dady, and the same day paid his bid to the Sheriff. No attempt to redeem was made by the defendant, for more than a year from the time of the sale. On the 1st of July, 1823, Birdseye redeemed as judgment creditor, upon a Justice’s judgment in his favour, docketed before the sale. On the 7th of the same month, Van Rensselaer redeemed from Birdseye. He claims that he had a right to do this as judgment creditor, and shews a judgment in his own favour against Dady, docketed in April, 1823, and another judgment assigned to him, previous to his attempt to redeem, by Stebbins & Hekok, docketed in 1817, against the same defendant. He received of the Sheriff the money paid by Birdseye and immediately repaid the same money to him, together with the amount of Birdseye’s judgment, and the 7 per cent, interest. On the 10 th of July, Birdseye received. of the Sheriff the money paid by Van Rensselaer, and on the same day repaid to the Sheriff the amount of the bid paid by Van Rensselaer, with the 10 per cent, interest, claiming to redeem as grantee of Dady, and also under a power of attorney from the latter, as defendant in the execution under which the premises were sold.

Upon this state of facts, one question is, whether the defendant, or his grantee, can redeem after the lapse of a year from the time of the sale, if he has the right to redeem, at any time within the 15 months, Birdseye, as his grantee or attorney claiming under him, had the same right. Upon examination of the act in question, we think the defendant cannot redeem after the 12 months. The 2d section declares, that it shall and may be lawful for any defendant, his heirs, tSfc. or grantees, whose la?ids or tenements shall be sold, ire. within one year from and after such sale, to redeem, ire. on paying the monies bid at the purchase. The part of the statute which is principally relied on, and which is indeed the only part which could create a doubt upon this question/ is a clause in the 3d section, which provides “ that the defendant shall, in all cases, be entitled to redeem such' lands or tenements, in preference to any creditor;” It is supposed tha.t this clause, when taken in connexion with the previous prov¡s¡ons 0f the act, shews that the legislature intended to give the same time of redemption both' to debtor and credit- or ; or in other words, that it controls the provisions of the 2d section, by extending the term of redemption' there allowed to 15 months; We think differently. This clause must be taken in connexion with, and in reference to the provisions of the 2 d section. In any other view this section-would be nugatory. It might better have been entirely omitted, if the legislature had intended to give the defendant the full 15 months, with the right to redeem at any "time within that period. This construction is much strengthened by looking at the consequences which would flow from the opposite one. The intention of the act was to give the defendant a reasonable time to redeem, for the benefit both of himself and his creditors. One year was considered a rea: sonable time. If he failed to redeem within this period? the object then was to put his land at auction', to the- best advantage among his creditors. For this purpose, the judgment creditors are allowed the additional three months. Within this time, one of them redeems from the purchaser -y a second creditor, redeeming from the first, is bound to pay him, not only the original bid, but his prior incumbrance. Then comes the defendant. Now it is clear that he is, in' no case, bound to pay more than the first purchase money, with 10 per cent, interest. He thus vacates the original purchase and certificate, and leaves the creditor who last redeemed without remedy against the previous creditor, whose incumbrance he has satisfied. This evil cannot be avoided, if we suffer the rights both of debtor and creditor to-run on together during the whole 15 months, giving the former a preference during the whole time. No prudent creditor will thus pay over his money and run his chance of re- ■ covering it, from the senior creditor upon the defendant’s ‘redeeming, even if he would have a legal remedy for it upon such an event. The defendant may reserve himself to i’-e last moment of the time, and then, by a partial paymem defeat all previous acts of redemption by the creditors, or, which is the most probable upon such a construction, find no competition among his creditors, exerted or attempted. Thus,- one important object of the act would be utterly defeated. The only way of avoiding this consequence is by confining the defendant to the year. By doing this and confining the creditors to the remaining three months exclusively, the defendant can come to redeem in those cases only where it is proper on paying the purchase money alone with the 10 per cent, interest. Van Rensselaer is, therefore, entitled to his deed, unless there is some objection upon other grounds.

It is said, that Van Rensselaer, being a mere assignee of one judgment, and his own having been confessed after the sale, he had on right to redeem upon either, and that if he faile d in his authority as to one, the attempt to redeem being entire, the Court cannot discriminate and give effect to either, for the purposes of this application. I think Van Rensselaer had a right to redeem as creditor on either, or both, of these judgments. The act says, it shall be lawful for any creditor to redeem. An assignee is a creditor within the statute. He is a creditor having a lien, within the terms of the act; and he comes within its spirit and object, which is to make the land pay as many judgments as possible. The intent is, every way, just as well accomplished by allowing the assignee to redeem, as by confirming the right to the nominal creditor. It is said that this construction will result in sundry inconveniences, which were adverted to by the counsel ; but the meaning of the act being plain, the consequence is a thing with which we have nothing to do. If the inconveniences are as great as it is supposed, they must be remedied by the legislature. But if this consideration could influence our decision ; I am not satisfied that the evils arising from this doctrine are so serious as to have that effect, or as was urged upon the argument". One prominent mischief mentioned by the counsel was, that the junior redeeming creditor could never know how much to pay to the assigaee of the senior judgment; that the assignment not being recorje(j; the amount could not be known. But the same difficulty exists where the creditor himself comes in his own name and right. Although there is a record, yet the judgment may be satisfied. To know whether this be so or not> yle cre¿¡tor, who comes next, must go a step beyond the record. Actual notice of his rights, must of course be given by the assignee, as in other cases where a chose in action is assigned, or he cannot be known, recognized and protected as such. Van Rensselaer’s course, in this instance, was the correct one. He produced to the Sheriff the exemplification of his own judgment, and a certificate from the Clerk of this Court, verifying the judgment in favour of Stebbins fy Hekok, and gave the Sheriff' notice of his assignment. We think this was doing ail that could reasonably be exacted.

It was insisted that Van Rensselaer, being an attorney at lazo, this assignment is void within the act to prevent abuses in the practice of the law. But this is a case which does not come within the purview of that act. This statute, and the old on.e prohibiting the purchase, &c. of any bond, note . or other writing, with intent to commence a suit thereon, &c-(q) are in pari materia. The late act never meant to forbid the,purchase of one demand, for the mere purpose of securing another.

It is objected, as to the judgment in favour of Van Rensselaer, that it was not confessed till after the sale. But, by the words of the act, any creditor who shall have a decree or judgment, which shall be a lien on the estate, may redeem. The existence of the judgment at the time of the sale is not essential. The statute contains no such limitation. Its fair construction will give a creditor a right to redeem, whose judgment is obtained at any time before the 15 months have expired. This construction will also further the intention of the statute, one object of which wa s to promote competition among the creditors to the greatest-possible extent, in order to make the property pay debts to its full value.' The motion for a mandamus must be granted.

(q) Sess. 36, ch. 48, s. 7. R.L. 417.