Wood v. Moorhouse.

to have been a purchaser, in good faith, without notice of any defect in the notices of sale.

2d. That the statute relating to the time and manner of giving notice, is directory merely, and non-compliance with its provisions does not vitiate the sale, and if it was mandatory, the remedy was by motion.

3d. That if Pratt was not a bona fide purchaser, those who purchased from him, and paid value, are to be deemed bona fide purchasers, and not having notice, are protected by § 49,

above cited.

4th. That the sale, if it was irregular when made, cannot now be set aside, as the judgment is barred, and the debt discharged by the statute of limitations, and the plaintiffs are chargeable with gross laches.

3d. Were the proceedings of Davis to redeem the premises from the sale on the Pratt judgment inoperative?

The defects in the proceedings to redeem, relied on by the defendant's counsel, are:

1st. The money was paid to Johnson, the assignee of the certificate, whereas it should have been paid to the purchaser, creditor, or officer making the sale.

2d. Davis did not produce a certified copy of the judgment on which he redeemed, together with a verified copy of assignment, or affidavit of amount due.

It was incumbent on the defendant to prove compliance with the statute, if he relies on the redemption, and the proceedings to redeem are not proved by recitals in the sheriff's deed.

To entitle a person to redeem premises sold on execution, by the statute (2 R. S., 2d ed., 295, §§ 59 and 60), he was required to pay the money to the purchaser, creditor, or officer. And there was no provision permitting payment to any one else.

It was, of course, necessary that some one or more persons should be designated, to whom payments not only might, but must be made. Persons desiring to redeem from such redeeming creditor, should know to whom they can pay, and not be left to incur the risk of finding who may be the assignee of

Wood v. Moorhouse.

the certificate of sale. I think, therefore, that payment to Johnson was not a compliance with the statute.

There is no proof that Davis ever presented to Johnson a copy of the docket of the White judgment, under which he proposed to redeem; or copy of the assignments of such judgment, verified by affidavit; or an affidavit of the amount due thereon, as required by. § 60 above cited.

It is proved that Davis had assignments, signed by Pratt, and those acquiring title to the certificate under him; that he held the assignments of a judgment against Theodore Wood in favor of White; that he presented to the sheriff such evidence of his right to redeem as satisfied the sheriff that he was entitled to redeem; but what evidence was presented to him is left unproved, and must be proved, if at all, by presumption in favor of the due performance of official duty.

But that is not enough; the sheriff cannot dispense with any of the requirements of the statute. (Hall v. Thomas, 27 Barb., 55.)

It has been held, that the production of the certificate to the sheriff, duly assigned, is a sufficient payment of the amount paid, to the purchaser at the sale. As owner of the certificate, he, and not the purchaser, is entitled to the money paid to redeem. (4 Hill, 608; 1 Denio, 239; 2 Hill, 51.) The evidence thus given, slight as it is, should perhaps be sufficient.

After an adverse possession of twenty years, in conformity with the deed from the sheriff, the law presumes in favor of the occupant, that the steps necessary to be taken to entitle the holder of the sheriff's certificate, or redeeming creditor to a deed, had been "aken. This presumption is essential to the security of titles

It is not the presumption of due performance of official duty merely, but it is that, together with the presumption of loss of evidence by death, destruction of papers, and other casualties. The authorities are collected in 1 Cow. and Hill's

Wood v. Moorhouse.

Notes, 355 to 367, and fully authorize the presumption after so great a length of time.

Davis and Johnson are dead, and the papers are lost or destroyed. A better illustration cannot be furnished, than this case affords, of the injustice of permitting the title of those in possession to be overhauled after a long acquiescence in the validity of the title; every presumption must be in their favor.

This brings me to the fourth, and only remaining question; whether Davis did acquire a valid title to the land as assignee of Johnson, who owned the certificate of sale through several mesne assignments from Pratt.

To entitle Davis to a deed as assignee of the certificate, the statute (2 R. S., 2d ed., 297, § 69) required that he should cause the execution of all assignments of the certificate to be acknowledged, or proved, as deeds are required to be acknowl edged, or proved, and to cause such assignments and certificates of proof to be filed in the county clerk's office.

The Court of Errors, in Waller v. Harris (20 Wend., 555), and the Court of Appeals, in The People v. Ransom (2 Coms., 490), held this provision mandatory, and of course non-compliance is fatal to the title.

There is no proof, that the assignments were ever acknowledged, or proved, or filed in the clerk's office.

I am of opinion that Davis is not shown, by the evidence, independent of the presumption entitled to a deed.

But the presumption, which I attempted to show under the preceding point, is permitted to be raised, authorizes us to hold that the acts required to be done, to entitle Davis to a deed, were properly performed.

The sale on the judgment being regular, and the time allowed to the debtor to redeem having expired, the plaintiffs have no interests in the premises, unless it may be the naked fee. There is now no right of redemption from the sale on the judgment; and under such circumstances, they have no claim to relief against the defendants, who entered under the

Hart o. Young.

purchase at the sale on the foreclosure, and who have been holding under that title for more than twenty years.

The judgment should therefore be affirmed. All the judges concurring, the judgment was affirmed.

LOUISA B. HART v. JOHN YOUNG.

(GENERAL TERM, THIRD DISTRICT, DECEMBER, 1869.)

Plaintiff was a married woman, and being in possession of premises belonging to her husband, who had absconded, and while preparing to leave the same, made a contract for a certain sum with the defendant, who held a mortgage on the premises which was due, to remain for a time, and at the end thereof deliver possession to him. In an action by the plaintiff, after performance by her, to recover the sum which the defendant agreed to pay. Held, the promise to pay was supported by a sufficient consideration. Plaintiff's performance was advantageous to the defendant, and an incon venience to herself; being in possession, as wife of the owner of the fee, her agreement to surrender it, was a sufficient consideration to support the defendant's agreement; and her possession as owner of a contingent right of dower was a subsisting right of which she might make disposal by sale.

The plaintiff was authorized (Laws 1860, chap. 90) to make the contract in her own right, and whether she so made it, or for her husband, was a question of fact; and defendant having asked a decision upon the question by the court, when about to submit it to the jury, and the court deciding for the plaintiff,-Held, there was no error.

THIS action was tried at the Ulster County Circuit in April, 1868, before Mr. Justice HOGEBOOм and a jury.

The action was brought on a contract; and it appeared upon the trial that the plaintiff and her husband lived together upon certain premises situate in the town of Marlborough, Ulster county, which were owned by the husband, and upon which the defendant held a mortgage, the whole amount of which was due and unpaid. The husband suddenly left, and attachments were issued against him as an absconding debtor. After he had been absent for some time, and on or about the 3d of May, 1864, the plaintiff and the defendant entered into LANSING VOL. I.

53

Hart v. Young.

the agreement stated in the opinion, which was fulfilled by her, and possession of the premises taken by the defendant.

At the close of the testimony a motion was made for a non suit, which was denied, the court holding that there was a question of fact for the jury, whether the plaintiff made the agreement with the defendant as the agent and on behalf of her husband, or on her own behalf and for her own benefit; if as the agent of the husband, that the verdict must be for the defendant; if for herself, she was entitled to recover, to which ruling and decision exceptions were duly taken by the defendant.

The counsel for the defendant stated that he did not wish to go to the jury upon any such question of fact, as the question in the case was one of law. The court then decided that the plaintiff was entitled to recover, and directed a verdict for the plaintiff, to which the defendant's counsel also excepted. The court directed that the exceptions be first heard at General Term with a stay of proceedings.

T. R. Westbrook, for the plaintiff.

E. Cooke, for the defendant.

Present-MILLER, INGALLS and PECKHAM, JJ.

By the Court-MILLER, P. J. The plaintiff in this action was a married woman; and being left in possession of certain premises by her husband, upon which the defendant held a mortgage, upon being called upon by the defendant, in the absence of her said husband, the defendant agreed to give the plaintiff the sum of $150 if she would remain upon the premises until he came there with a family and put them in possession. The plaintiff remained in possession according to the agreement, and the defendant took possession of the premises by placing a family there.

The defendant seeks to avoid a recovery upon several grounds, which I will proceed to consider. He insists: 1st. That the defendant's promise was without consideration and