Ex parte Peru Iron Co. , 7 Cow. 539 ( 1827 )

Curia, per Savage, Ch. J.

The relators contend,

1. That Douglass could not redeem, because his judgment was of more than 10 years standing; and had therefore ceased to be a lien.

2. That no redemption could be made by Finch from the Cady sale after his (F’s) judgment had been paid or the amount tendered; and again,

3. That his judgment, being senior to that on which the relators sold, he could not redeem 165 and 197 from the sales to them.

4. That Finch, in paying Cady, was a redeeming creditor; and the relators had a right to redeem from him: or,

5. If Finch was an assignee of Cady, then the relators might redeem from him.

A preliminary objection to this motion was taken, that the relators, being a corporation, have no right to claim deeds, without first showing that this is necessary for their corporate purposes.

Their act of incorporation, (sess. 47, ch. 263, s. 1, p. 323,) authorizes them to hold lands necessary for manufacturing operations. • This preliminary question must, therefore, depend on evidence; which seems to be in favor of the company. This is the first time we hear of the objection. Both Douglass and Finch, who now raise it, had treated the company as valid purchasers in the first instance; and again, as holding the interest of Cady, by the several attempts which they made to redeem. There is no pretence that they acted in ignorance that the company were seeking to acquire these lands for themselves; and as to a portion of the lots, it appears affirmatively, that they had full knowledge of that fact. Yet the right of the company was not questioned. It was affirmed, and titles claimed and taken under it. These lands may very well be necessary, as furnishing iron ore and coal; and we cannot intend, especially under the circumstances of this case, that their acquisition is entirely without the object *of the incorporation. If the right of the company had not been acknowledged, it is, at least, doubtful whether they should be put to prove in the first instance, not only a formal title, but that the land is necessary for corporate use. However this may be in relation to other corporate companies, it cannot be so with one created for purposes which imply the necessity of owning or using a considerable real estate. They would have an indefinite right to purchase, if not restrained by their charter. This restraint is imposed by a proviso. It is a rule in pleading, that where a statute uses general terms, it is enough for a party to bring himself within those terms; and if the opposite party will avail himself of a proviso, he must show that his adversary’s case is within it. The onus lies on him; and the reason of the rule would seem to reach the present case.^[1]

The questions raised, therefore, will be considered as if the relators were a natural person, with full capacity to take real estate.

On the merits, these motions derive their intricacy from blending together several distinct matters. I will endeavor to separate them.

The motions involve the title to five lots of land in Clinton county, and six in Essex county.

iTirst, of the lands in Clinton. The relators, under the Suydam and Wyekoff judgment, purchased at sheriff’s sale, January 29th, 1825, the Clinton lands, being lots 165, 197, 201, 205, and 206, in Maule’s patent.

On the 29th of April, 1826, Finch redeemed lots 165 and 197, as assignee of the Webber judgment; and took a deed from the sheriff of Clinton.

The relators never received the money paid by Finch; but contested his right to redeem. The question raised, on this part of the case, is, whether a senior judgment creditor can redeem from a sale under a junior judgment. The facts present the question. They are these: The Suyaam and Wyckoff judgment was docketed May 9th, 1812; and was revived by scire facias, August 8 th, 1823. The Webber judgment was docketed December *27th, 1819. The relators contend that their judgment is the junior one; and that a senior judgment cannot redeem from a juúior; but must sell; and, consequently, the junior judgment may pay off the senior.

It is certain that the Suydam and Wyckoff judgment is junior; its lien having expired as to Iona fide purchasers and subsequent incumbrancers. The record of revival is younger; but that creates no new lien except for the costs. The effect of it is merely to make the execution regular; but not to change the nature of the lien as to the judgment itself.

The words of the act, (sess. 43, ch. 184, s. 3,) are, that it shall be lawful for any creditor, who shall have a judgment which shall be a lien on the real estate of the defendant, to redeem, &c. This is broad enough to embrace every, judgment creditor, whose judgment is a lien on the land of the defendant. It is true, that it is not necessary, for the security of the senior judgment, to redeem; because a sale under a junior judgment does not prevent a subsequent sale under the senior. But all judgment creditors are included within the terms used by the legislature. Their object undoubtedly was, to prevent a sacrifice of the defendant’s property; and afford an opportunity for all the creditors to bid upon each other, without disturbing the priority of liens; and it seems to me the intention of the legislature will be best promoted, by giving a liberal construction to the act. Even a literal construction, however, will give the benefit of the action to every creditor whose judgment is a lien on the defendant’s property. That both these judgments are liens, seemed admitted by the parties. Ho question of that kind is raised.

Assuming, then, that the Webber judgment, although senior, has a right to redeem, then Finch’s redemption was regular; and so .much .of the motion as requires his-deed under this sale, to be surrendered up to be cancelled, must de denied.

Finch-then became seized of all the rights of Winter, the defendant in the judgments. He was, in effect, *Winter’s grantee. He possessed all -"the-title which could be; given by virtue of a sale under the-Suydam and Wyckoff judgment.

Subsequent, however, to the sale under-the Suydarn and Wyckoff judgment, (November 3d, 1825,-) another sale was made under , the "Cohen judgment, which was the oldest lien among the seven judgments. .For though three-of those judgments were docketed in 1812.; yet, ten years having elapsed since-the-docketing,-they must necessarily -be postponed to all others docketed within ten years anterior =to the sale. By the act of 1813, (1 R. L. 500, s. 1,) no judgment shall remain a lien on any real estate, as .against bona fide purchasers or subsequent incumbrancers, after ten years from the time of docketing. But as.against the defendant in the judgment, the lien remains the .same as before the act. It continues as against the defendant •and his heirg, until payment will be presumed from lapse of time. A judgment more than ten years -old -may be a lien on the-“real estate of the defendant,” in the-language of the .act of 1820; and - therefore is entitled .to -redeem. Such a judgment, however, is not a -prior lien to those .within the ten years; and must, as to such judgment, be considered junior.

’The Cohen judgment was docketed February 10th, 1816; •and .was, therefore, in -legal contemplation, the elder, or more properly -th e better lien. At the sale under this judgment, on the 3rd of November, 1825, Daniel Cady, Esq., became the purchaser. The same lots were sold at this, as .at the preceding sale under the Suydarn and Wyckoff judgment, on the 29th of January previous.

It has "been settled by this court, that a sale by a sheriff since the act of 1820, does not change -the title until con.summated by a conveyance; and hence a judgment subsequent to the sale, becomes a lien on the real -estate -of the defendant"; and entities the creditor to redeem from the previous sale. On the 29 th of April, Finch, by virtue his redemption under the first sale, became vested with all the estate of Winter; and, in the character of owner, or, in the language of the act, grantee, he, on the 26th of September, 'XT826, within twelve months from the Cohen sale, redeemed, lot 197. This sale being upon the older lien, overreached the previous sale; but it was not consummated when Finch received his title under the first sale. If Finch 1 was grantee, then the Cohen sale and the certificate-of the sheriff as to 197 became null and void. So Mr. "Cady, the purchaser, considered it; for he gave Finch a discharge of that lot from the sale.

Here, then, was. an end to all further redemption as to lot 197. Even if Finch was not grantee, he had paid the bid upon that lot, and discharged it from that sale. This he had a perfect right to do; and this act could work no prejudice to any subsequent incumbrancer. It was releasing so much from the prior incumbrance; and, of course, if the redemption was invalid, on account of the person making it not being entitled to do so, still the fund was increased, out of which the junior judgments might be paid.

On the 18th of December, 1826, the relators purchased all Mr. Cady’s interest in the Cohen judgment, and in the lots sold under that judgment. If they became mere assignees, then they stood in the relation of purchaser, in the same manner as Mr. Cady did before he assigned his interest. They, however, contend that they did not purshase Cady’s bid; but redeemed from him as creditors; md it becomes material to inquire iii what relation they stood.

Col. Murray, as agent for the relators, they being assignees, as he swears, of the Suydam and Wyckoff judgnent, of the two judgments in favor of Fayson, and one n favor of Kingsley, paid to Mr. Cady his purchase money, md ten per cent.; taking a written acknowledgment of the sayment, and an order on the sheriff to give deeds to the ■elators of all the lots except 197; and assigning to "them the Cohen judgment, all his interest in the lots. Ii my judgment, they are to be considered redeeming credi tors, so far as regards this transaction. Mr. Cady migh have required proof both of the existence of their judg ments, and of their being assignees. "Whether he did oi not, does not appear. It does appear, however, by th< *affidavit of Col. Murray, that they were assignees of thosi judgments; and in that character redeemed from Cady Thus far they proceeded regularly enough on both sides.

On the 2nd of February, 1827, Col. Murray paid to th sheriff of Clinton, $1,468, to redeem lots 165 and 197. A to 165, it is extraordinary that the relators should hav attempted to redeem from themselves. As the facts the: stood, they were entitled to a deed by virtue of the tram fer from Cady, whether they were purchasers or redeemin creditors. As to 197, they proceeded on the ground tha Finch redeemed as a judgment creditor, and not as grantee The facts already stated, in relation to this part of the case show, in my judgment, that this lot was placed hors d combat. The effort, as to both lots, was, therefore, perfectl futile. It will be recollected that both these lots were r< deemed by Finch from the Suydam and Wickoff sale; an he received a deed for them. After obtaining this deed, 1 sold lot 165 to Douglass in September, 1826.

On the 3d of February, 1827, both parties appeared b fore the sheriff late at night; Murray and Aiken for tl relators, with their counsel, on one side; and Finch an Gilson, with their counsel, on the other side. But befo: this, and on the same day, Gilson, on the behalf of Dou: lass, had left; $250 to redeem lot 165. In the evening, 1 appeared, and demanded a deed, which the sheriff decline giving. About half-past eleven, Murray paid the sheri $100 to satisfy and extinguish the Webber judgment,-whie belonged to Finch, as a part of the redemption of 19 Immediately, Finch, Gilson and Mr. Tomlinson, their cou sel, appeared. Mr. Swetland, the counsel on the other sic informed them that the Webber judgment was paid u] and that the money was in thé sheriff’s hands, and lyii on the table. Col. Murray informed them of the arrant ment with Cady, and Mr. Swetland informed them of the judgment of which the relators'were assignees; showing them a memorandum of the assignments, containing the dates and amounts. Mr. Tomlinson examined the memorandum, and handed to the sheriff *a written notice signed by Finch, stating that he was assignee of the Webber judgment. Murray then tendered tó Finch another $100, in satisfaction of that judgment, which he refused to receive. Mr. Tomlinson, as counsel for Finch and Douglass, required of Messrs. Murray and Swetland, and of the sheriff, some evidence of the existence of their judgments, and of their right to them. Hone was offered except the memorandum. This contained the titles, and the sums claimed to be due, as I before mentioned; and, in a note, it was stated that they were assigned to the relators, whose counsel now claimed 5 or 6,000 dollars. Mr. Tomlinson protested against the right of the relators to tender, or the sheriff to receive payment of the Webber judgment. He then stated that, in virtue of the Webber judgment and of the Yechio judgment, he redeemed lots 165, 201, 205 and 206; and paid $450 for that purpose. He handed the sheriff a memorandum, containing the titles and the amount of the judgnents; stating that the Webber judgment was assigned to B'ineh, and the Yechio judgment to Douglass. The sum paid was the amount bid by Cady, with ten per cent. Col. ffurray required payment of the judgments assigned to ¡he relators, to which the answer was given, that they had produced no evidence either of the existence of their judgnents or the amount, or of the assignments. Mr. Tomlin-son states, in his affidavit, that on the Payson judgment ibout 3,000 acres of land were sold in Essex county; and m the Suydam and Wyckoff judgment about 1,500 acres if land in Clinton county, for a sum nearly the amount of he judgment. Gilson swears that previous to the redempion by Mr. Tomlinson, he demanded to know the amount f liens on the lots; declaring that he was prepared to pay 11 previous" liens; that he asked for exemplifications of he judgments, or certificates from the clerk that there ¡rere such judgments.

On these facts, the ■ question arises, who is entitled to a deed, the relators, Finch or Douglass? As to 197, I place it out of the'case, on the ground that it was redeemed by the'grantee of the defendant. Though if Finch had *aoted as a creditor, when he redeemed-from'Cady, then the relators lave-done enough tcentitle them to a deed under their judgment in favor of Kingsley. -My opinion, however, as to that lot, is, that no deed is to be given to any one. As to the other lots, they seem to me to be all in -the same condition. They were all sold -under the Suydam -and Wyckoff judgment. Finch took a deed of 165 and 197-; and the relators took deeds of'the other three lots tinde^ the‘same-sale. That sale was overreached by the Cohén sale and -purchase by Mr. Cady; and the 'relators, as his assignees, or as redeeming creditors from him, are entitlec ’to a deed, unless that right has been divested by the acts of other creditors. Their attempt to redeem 165 and 197 1 have already considered as futile and of no effect.

Did, then, either Finch or Douglass obtain a preference Í They united, and Mr. Tomlinson for them .paid the amouni of the Cady bids, and ten per cent.; -but no moré. If th< relators were assignees only of Cady, then enough was done ; and Finch and Douglass are entitled to a deed. If however, the relators were redeeming creditors, and fur nished evidence of that character, then enough was no •done. When evidence was called for, all that "was -furnishec -was 'a -memorandum unsigned by anyone, and an assertioi made "by‘Col. Murray, that the relators were assignees oí those-judgments. Mr. Tomlinson declares himself read] to discharge any lien which they -are entitled to receive No evidence is produced showing -title to any judgment except ‘the direction from Mr. Cady to the sheriff to convey Then Finch and Douglass are entitled to a deed, if the] were, judgment creditors having a lien.

First, was the Webber judgment a lien-? It was -un-les the lien had been discharged, either by the redemption un der the first sale, or by the tender just before .the redemp tion. As to the first redemption, that cannot be a satisfai tion ; for although he derived a title -under -it, it was bu lominal, and like a conveyance from Winter himself. This was not a case of tender. It is like that of Jackson v. Law, (5 Cowen, 248,) in which it was decided that a ^tender by one j udgment creditor to another did not discharge the lien. The Webber judgment, then, was a subsisting lien; and,the redemption good.

Was the Yechio judgment a lien ? It was docketed January 10th, 1812; and not revived. The first sale was under ¡he Suydam and Wyckoff judgment, which was docketed May 9th, 1812; and revived August 8th, 1823. Both judgments had lost their lien as to junior judgments and bona fide purchasers. Which was the prior judgment ? If they are to take rank according to their dates, then the first sale was on the junior judgment. If the priority is reversed by lapse of time, then the first sale was under the elder judgment; and the junior, not having redeemed from that sale, lost its lien altogether; and cannot redeem. In my judgment, it comports best with the policy of the act, and the intention of the legislature, to hold that the lien of both had expired as to all concerned, except the defendant and his heirs; and as to them, that the liens, thus qualified, rank as if the act of 1813 had never been passed; If this is correct, then the Yechio judgment was entitled to redeem; and therefore, under either Finch or Douglass, the redemption by Mr. Tomlinson was good.

There is no ground, therefore, for a mandamus to the sheriff of Clinton, to convey 165, 201, 205 and 206, to the relators. Finch or Douglass, or both, are entitled to deeds of those lots as redeeming creditors.

The motion of the relators as to these lands must be denied.

As to the lands in Essex. Lots 73, 74, 123, 159, 160 and 188, were sold by the sheriff of Essex, under the Pay-son judgment, August 3d, 1825 ; and purchased by Aikin. On the 2d of November, 1826, Douglass, by virtue of his Yechio judgment, redeemed 160, 159, 123 and 188; and received a deed on the 4th of November, 1826. On the 10th of September, 1825, lots 73, 74, 123 and 160, were sold by the same sheriff under the Cohen judgment; and purchased by Hr. Cady. On the 10th of December, 1826, -Douglass regularly redeemed 123 and 160 ; and paid the sheriff the amount which he claimed for the money bid on *73 and 74, and ten per cent.; and after the 15 months had expired, he conveyed the whole to Douglass. It was agreed between Douglass and the sheriff, that if enough was not paid, the sheriff should pay it; and when Col. Murray called and demanded a deed for the relators, the sheriff had money enough lying on his table, which he was about to offer; but Col. Murray declared he would not take any money on any of the lots sold and redeemed, until he had consulted Mr. Swetland. The.sheriff, in fact, tendered to Col. Murray only $22 50 for both lots; whereas,. one sold for $29 10; and the other for $20 90. The short payment no doubt was a mistake of the sheriff.

The questions arising on this part of the motion are, 1. Is the Yechio judgment a subsisting lien, which will authorize a 'redemption ? • 2. If it is, then does the short payment vitiate the redemption as to' 73 and 74? If it does not, then the relators must fail in this part of the motion. If it does, then their motion must be granted as to these two lots.

The first of these questions I have already attempted to answer. The second has, I think, been decided in the case of Dickinson v. Gilliland, (1 Cowen, 498.)

The conclusion is, that so much of the motion as requires the sheriff of Essex to convey lots 73 and 74 to the relators, be granted; and the residue denied.

Rule accordingly.

[1] See Chitty's Pleading, vol. 1, pp. 223, 309, 334.