the certificate, with ten per cent. interest, within the year allowed, he cannot afterwards claim that the payment was in acquisition of the title, and, if he takes a deed from the sheriff, it will be void, as against a purchaser under a junior judgment-creditor. Stafford vs. Williams, 12 Barb., 240. But whether, under doubtful circumstances, a transaction was in effect a redemption, or a purchase of the sheriff's certificate, is a question of fact, and the burden of proof will lie upon the party assailing the title. Pennell vs. Hinman, 7 Barb., 644. As to the right of both the mortgagor and mortgagee, to redeem, as against a sale on execution, the former during the first twelve, the latter during the three succeeding months, see North River Insurance Company vs. Snediker, 10 How., 310. The taking of an assignment of the sheriff's certificate, will not entitle the mortgagor to stay proceedings by the mortgagee, for sale under a foreclosure. The latter is not confined to his right of redemption, but may assert his independent remedies. New York Shot and Lead Company vs. Cary, 20 How., 444; 10 Abb., 44. A prior mortgage, though unregistered, takes priority over a subsequent judgment, even in respect of future advances, unless the withholding from record has been fraudulent. See Thomas vs. Kelsey, 30 Barb., 268. The payment to the sheriff in order to the acquisition of title, must be of the whole amount due. And, in acquiring the title of any creditor who has acquired the sheriff's certificate, another judgmentcreditor must pay the full amount of his bid, without reference to priorities, between himself and such creditor. Barker vs. Gates, 1 How., 77. The giving of notice to the sheriff not to part with money paid on redemption, will not invalidate the effect of the payment. Spraker vs. Cook, 16 N. Y., 567. Where the sheriff had neither died nor been removed from office, payment to the county clerk, was held to be wholly ineffectual for the purpose of effecting a redemption or acquisition, such county clerk not holding any special deputation, even although the business of both was carried on in the same office, and although neither the sheriff nor any of his deputies were in attendance. Nor did the fact that, on the following day, the original purchaser took the money from the county clerk, and used it to effect a second redemption from the first redeeming creditor, avail to give the transaction validity. People vs. Rathbun, 15 N. Y., 528. See also Griffin vs. Chase, 23 Barb., 278. Though it is not the sheriff's duty to calculate the amount, still, if he assumes to do so, the court will not allow the party redeeming to suffer through his mistake, but will hold the redemption good. A payment Hall in current bank bills, if accepted by him, will also be sufficient. vs. Fisher, 9 Barb., 17. When a sale is made under several judgments, a party, to entitle himself to the sheriff's deed, must acquire the rights under all. And, where two junior judgment-creditors each paid the amount of the bid, but neither paid the judgment of the other, the senior of them was held entitled to the preference. And a senior judgment-creditor, may acquire the rights of a purchaser under a junior judgment. The People vs. Fleming, 2 Comst., 484. (j) SHERIFF'S DEED. It seems that the party entitled to the sheriff's deed, may, if he elect to do so, abandon his title under the certificate, and rely upon a release from the judgment-debtor, and that the concurrence, in such case, of the legal and equitable interest will confer upon him a complete title. Wright vs. Douglass, 10 Barb., 97. Same case, 3 Barb., 554. The reversal of the latter decision at 3 Seld., 564, does not seem to affect this particular doctrine. The regular practice will be found, however, the more convenient. So long as the recitals sufficiently set forth the authority under which the sale is made, it is not necessary to set forth the judgment and execution in detail. Averill vs. Wilson, 4 Barb., 180 (183). Nor will the insertion of impertinent matter in the recitals, invalidate the instrument, if otherwise sufficient. Spraker vs. Cook, 16 N. Y., 567. The description inserted must be sufficient and certain, or the deed will be void. Peck vs. Mallams, 6 Seld., 509. Till the actual execution and delivery of the deed, no title passes, and the legal estate, with all its incidents, remains in the debtor. Smith vs. Colvin, 17 Barb., 157; Farmers' Bank of Saratoga County vs. Mer chant, 13 How., 10. But, when so executed and delivered, the title conferred by such deed dates back by relation, to the time of the sale, and shuts out all subsequent ly acquired interests. 2 R. S., 373, section 61. See Thomas vs. Crofut, 4 Kern., 474; Chatauque County Bank vs. Risley, 19 N. Y., 369.. When a judgment-creditor has redeemed, in respect of a partial interest, he is only entitled to a conveyance of the interest so redeemed by him. Neilson vs. Neilson, 5 Barb., 565. Whatever right the debtor has, passes by the deed, with all the incidents and burdens appendant to it. Dickinson vs. Smith, 25 Barb., 102. But, if such right has lapsed before the deed is given, the purchaser will take no title. Bigelow vs. Finch, 17 Barb., 394. In Bartlett vs. Judd, 23 Barb., 262, a patent mistake in a sheriff's deed was reformed, as between the parties to the suit, no rights of other creditors being in question. But, where there exist such rights, it Where the debtor was in possession of the property, at the time the judgment was docketed against him, he, and any one coming into possession under him, will become tenant at will to the purchaser. Colvin vs. Baker, 2 Barb., 206; Dickinson vs. Smith, 25 Barb., 102. And such tenancy possesses all the usual incidents, with reference to the right of dispossession by summary proceedings. Vide Spraker vs. Cook, 16 N. Y., 567. But, where the property is subject to an executory contract for sale, the purchaser takes it, subject to the equities of the holder of that contract, who may require a strict performance. Moyer vs. Hinman, 3 Kern., 180. On taking his deed, the purchaser becomes entitled to redeem, and cancel a prior outstanding mortgage. He cannot, however, claim an assignment of it, unless he can show it was necessary for his protection, the land being the primary fund for payment. But, before sale, and whilst the judgment is a mere lien, it seems an assignment may be claimed. Dauchy vs. Bennett, 7 How., 375. § 285. Execution Against Person. STATUTORY PROVISIONS. The right to issue an execution of this description is thus conferred by the Code, section 288: If the action be one in which the defendant might have been arrested, as provided in section 179 and section 181, an execution against the person of the judgment-debtor may be issued to any county within the jurisdiction of the court, after the return of an execution against his property, unsatisfied in whole or in part. But no execution shall issue against the person of the judgment-debtor, unless an order of arrest has been served, as in this act provided, or unless the complaint contains a statement of facts, showing one or more of the causes of arrest required by section 179. The following provisions of the Revised Statutes may possibly be held to retain their vitality in this respect (see reservation, Code, section 291): VOL. II.-41 Under article I., title V., chapter VI., part III., section 5, 2 R. S., 364, it is provided that, if the defendant be imprisoned on execution in another cause, execution may issue against his body, without any previous execution against his property. The remainder of the section relates to the charging in execution, of a defendant, already imprisoned on mesne process, or on surrender by his bail. See provisions as to supersedeas, below cited. Under section 8 of the same article, it is provided that, if any person who shall have been taken on an execution, shall escape, he may be retaken, by a new execution against his body, or an execution against the property of such prisoner may be issued, in the same manner as if the body of such prisoner had never been taken in execution. Under chapter 427 of 1857, vol. I., p. 850, whenever any debtor shall have remained charged in execution for thirty days, any creditor at whose suit he is charged, may, by a written notice, require the sheriff to discharge him from imprisonment, and thereupon he shall be discharged, and such creditor may have the same civil remedies to enforce payment, as if execution against the person had not issued. But no further execution against the body shall be issued, on the same judgment. If any person charged in execution shall die whilst charged, new executions may be issued against his property, as if he had never been charged, but without prejudice to the right of intermediate purchasers of real estate. 2 R. S., 368; sections 28 to 30, inclusive. Article IV. of title V., above referred to, provides as to the custody of the party whilst charged in execution. Vide 2 R. S., 376, sections 76, 77. Under chapter 32 of 1846, the jail liberties of New York comprise the whole of the city and county. At the time of arrest, the sheriff is bound, if required by the defendant, to deliver to him a copy of the process, without expenses. Vide 2 R. S., 440, section 76. Provisions to the following effect, are also made on the subject of supersedeas, at 2 R. S., 556, sections 36, 37. When any defendant, at the time judgment shall be rendered against him in any court of record, shall be in custody, either on process or surrender by his bail in the same suit, "the plaintiff in such judgment shall charge such defendant in execution thereon, within three months after the last day of the term, next following that at which such judg ment shall have been obtained." And, where such defendant shall be surrendered by his bail after judgment, and the bail exonerated, then the plaintiff must charge the defendant in execution within three months after such surrender, or, if execution against the property shall have been issued, within three months after the return-day of such execution. Section 36. If any plaintiff shall neglect so to charge any defendant in execution, such defendant may be discharged from custody, by a supersedeas, to be allowed by any judge of the court in which such judgment shall have been obtained, unless good cause to the contrary be shown; and, after such discharge, the defendant shall not be liable to be again arrested on the same judgment. Under chapter 150 of 1846, an attorney, or other male person, in a fiduciary capacity, is liable to imprisonment, in actions upon contract, for moneys received, in the same manner as in actions for wrongs. This in effect anticipates the provisions of the Code, in section 179. Although section 179 has been before cited in book V., it will be obviously convenient to repeat the citation here, to prevent the necessity of a back reference. Section 181 is unimportant on the present occasion; its operation being merely that of giving the other a retrospective effect. Section 179 runs thus: The defendant may be arrested, as hereinafter prescribed, in the following cases: 1. In an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant is not a resident of the state, or is about to remove therefrom, or where the action is for an injury to person or character, or for injuring, or for wrongfully taking, detaining, or converting property. 2. In an action for a fine or penalty, or on a promise to marry, or for money received, or property embezzled, or fraudulently misapplied, by a public officer, or by an attorney, solicitor, or counsellor, or by an officer or agent of a corporation, or banking association, in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neglect in office, or in a professional employment. 3. In an action to recover the possession of personal property unjustly detained, where the property or any part thereof has been concealed, removed, or disposed of, so that it cannot be found, or taken by the sheriff, and with the intent that it should not be so found, or taken, or with the intent to deprive the plaintiff of the benefit thereof. 4. When the defendant has been guilty of a fraud, in contracting the debt or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought. 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. But no female shall be arrested in any action, except for a wilful injury to person, character, or property. |