
    In the matter of Sanders Van Rensselaer against The Sheriff of Albany.
    The act in addition to the act concerning judgments and executions, is a remedial statute, and
    ought to be so construed as to suppress the mischief intended thereby to be avoided, and advance the remedy proposed.
    It was intended for the benefit of the debtor, by preventing a sacrifice of his real property; and of the junior judgment creditor, by giving him a chance to redeem the land sold upon a ' senior judgment.
    If a junior creditor become a purchaser of real estate on execution, he must bid the amount of the execution, and his own lien, if he means to secure himself out of the property sold.
    On a sale by execution, of real estate, bound by a mortgage, the nfud»ment npon which sold, if the mortgagee mean to save himself, he imountof’his mortgage: gee, or’the assignee of a
    
      At the last May term, a rule was granted against Van Antwerp, Sheriff of Albany county, to shew cause at the last August term, why a mandamus should not issue, commanding him to convey- certain lands of Peter S. Van Rensselaer to Sanders Van Rensselaer,
    
    The facts noticed, on shewing cause, were as follows: Edward Watrous had a judgment in this Court against Peter S, Van Rensselaer for $180, docketed March Ulih, 1817. Robert. Sanders had another judgment in this Court, against the same defendant, for $109,92, docketed October 23d, 1819. Under executions upon both these judgments, Van Antwerp, as Sheriff, on the 20th of October, 1821, sold the lands of the defendant to Abraham A. Lansing, at a bid of $320, and executed the usual certificate of sale. Intermediate the time of docketing these two judgments, PetcrS. Van Rensselaer, the defendant, had executed several mortgages of his lands, two of which mortgages, amounting to about $1800, were, at the time of the Sheriff’s sale and pur? chase by Abraham A. Lansing, owned by him. One of them he held as mortgagee, and the other as assignee. After these transactions, Sanders Van Rensselaer, the relator, persuaded Peter S. Van Rensselaer, the above defendant and mortgagor, to confess a judgment to hiip, which was also docketed in this Court on the 1th December, 1822. On the same day, he (S. V.) left a certified copy of his judgment record with the Sheriff, paid him $357, being the sum hid by Lansing, with 10 per cent, interest, &c. and claimed to redeem as a judgment creditor. Lansing had died since the sale, and his representatives, hearing of this claim to redeem, and fearing that a deed to Sanders Van Rensselaer would divest their rights under the two mortgages, gave notice to the Sheriff n°t to convey till these mortgages were satisfied. Robert Sanders, on the 18 th of January, 1823, deposited $348 with the Sheriff, and claimed also to redeem under his judgment, alleging that he had discovered the previous liens of Lans,-ng_ an¿ directing the Sheriff to return his execution nulla foraa.
    mortgagee, as sueh, is not a grantee within the meaning of the act, and has no power to redeem ; and upon such sale, a creditor, by judgment younger than the mortgage, may redeem from tlie purchaser, aud is entitled to a conveyance, and may thus obtain a preference to the mortgagee, though the lien of the latter be the oldest; for the creditor redeeming is in under the purchaser and takes all his rights.
    Where W had a judgment, then L had a mortgage, then V had a judgment, all against the same man, and which were a lien on the same real estate—upon a sale on execution upon W’s judgment, L, the mortgagee purchased ; and V then claimed to redeem, by paying the purchase money, with 10 per cent. &c. but L gave notice to the Sheriff, not to convey, till his mortgage was first paid : held, that the Sheriff was bound to convey to V. And a rule for a mandamus was granted to compel him to give a deed.
    Form of this rule.
    The act does not invert the order of liens, but merely withholds a remedy from the mortgagee, which it grants to a judgment creditor. It violates no right, therefore, and is not, in this particular, unconstitutional; for before the statute, a sale tin an elder judgment divested all junior liens.
    
    It is enough to entitle a judgment creditor to redeem, that his judgment is a lien at the time when he comes to redeem. It need not be a lien at the time of the sale The sale does not divest the title of the debtor, till the 15 months time for redeeming has expired ; and a judgment obtained against the debtor, at any time within the 15 months, is, therefore, a Ken.
    
    Where the debt, for which a junior judgment is confessed, is well secured otherwise than by the judgment, the judgment creditor ought not to be permitted to redeem to the prejudice of a mortgage lien, intermediate the senior judgment, on which the sale took place, and his own judgment on which he seeks to redeem. But the proper remedy of the mortgagee, in such a case, is in a Court of Equity, and this Court will, notwithstanding, compel the Sheriff, by mandamus, to convey to such junior creditor.
    But they will, on request of the counsel for the mortgagee, make the rule for a mandamus, expressly, .without prejudice to the rights of the mortgagee in any future litigation.
    A decision of this Court, on summary application, is not res judicata.
    
    The power to grant a mandamus is discretionary ; and will be refused where the end of it is private right merely; and where the granting it will be attended with manifest hardships and difficulties. ■
    A stipulation not to lake out execution against the body or personal property of the defendant, in consideration of his confessing a judgmeht, does not prevent the judgment ope-, rating as a lien upon his real estate.
    The argument, on shewing cause, was heard at the last *erm’ an(^ ^e Court took till the present term for advisement. It will be perceived, that one ground taken, on shéw*n§ cause, was, that the judgment of Sanders Van Rensselaer was obtained under such suspicious circumstances, as to . . , ... warrant the Court in refusing all aid to him upon this motion. As the facts upon which this part of the argument proceeded are very fully considered in the opinion of the Chief Justice, it is unnecessary to detail them here. The material ■facts, as they were noticed, on granting the rule to shew /, j . „„ 0 ,a . cause, are stated;, ante, 62-3 (o. C.)
    S. M. Hopkins, shewed cause.
    1. He said, that the represen"iatives of Lansing, the purchaser, had given due notice to the Sheriff of their mortgages, and that he must allow no redemption till they were paid. But the junior incumbrancers paid no attention to the mortgage, liens. They tendered the money, only, which Lansing bid at the sale. We claim that the original order of the incumbrances is not to be disturbed. The other party claims to overreach us. This raises the question, whether the act (sess. 43, ch. 184,) can divest previous liens. Before this act, the incumbrancers might foreclose each other in their order. On bill in Equity, the junior incumbrancer must redeem or be foreclosed. That is á proceeding which brings all parties before the master ; and binds them to pay according to their respective priorities. The younger creditor must call the senior creditors before the Court, and redeem them, before he can reap the fruit of •his lien. What, then, was the mischief to be remedied by the ■het ? was it that the mortgage under the registry act had priority ? No. The evil was, that not only the judgment Creditor, but strangers, might buy at a reduced rate, and thus injure the defendant, or subsequent creditors. It was to Remedy this, by giving a time of redemption, not to displace liens, that thfe late- act was passed. If the lien of a mortgagee does not come within the mischief (and clearly it does not) it is saved. The answer given to • us at the last term was, “ you should have bid to the amount of your mortgages. You-should have gone beyond the $300 up to your $1800 claim.” Cúi bono bid $2100? To whom belongs the balance ? If the lien is turned into money, the latter must go in the same order with the subject,. The mortgagees are to receive the $1800, the amount of their mortgages ; and in order to this, it is said, they must first bid and pay the whole. To whom is the money to be paid by the mortgagees,.who are thus called upon .to bid beyond the judgment ? Must it be paid to the Sheriff, to remain with him till a junior creditor comes to redeem ? This is all, either useless—a mere sound—-or if the mortgagees bid for an effective purpose, the money must be paid over by the Sheriff to some other person, and is a dead loss to them. If due to the mortgagees, and to be paid them on redeeming, or at any other time, why áre they to bid at all ? This may all be done directly, by requiring the one w[10 comes to redeem to pay our lien, without the idle formality of our bidding up the premises. It is a ceremony which makes no alteration in our rights. The obligation of bidding applies to another state of things. Suppose, instead of mortgages, these liens h'ad all been judgments, and the property had béenbid in under the senior judgment, at $500.’ The eifect of this would be, that a junior creditor redeeming," would take thé whole for that sum. The next junior creditor, on coming to redeem, would then be bound to pay, not only the $500, but the judgment in right of which the first redemption took place ; and so on, through the whole order of the incumbrances ; thus keeping up a perpetual auction.
    2. But there is another point of view, in which these junior incumbrancers have nti right to redeem from us. We are grantees of the land, within the meaning of the-2d section of the act, which provides, that it shall be lawful for the defendant, his heirs, &c. or grantees, to redeem within one year front the time of sale. We are grantees, subsequent to the judgment under which the sale took place. If A confess judgment for $1000, and alien, the grantee may redeem within the act. Sd of a mortgagee. By the 3d section, the defendant may, in all cases, redeem in preference to any creditor ; and. though the expression here is confined to the. defendant, andróes not extend, in terms, to his grantee, yet the latter is within the spirit of the provision ; and, at any rate, the omission does not prejudice the right of redemption given to the grantee in the 2d section. A mortgagee, then, being considered a grantee, and the right to redeem, therefore, saved to him, Lansing, or his representa-1 lives, had a right to redeem as grantees. But it may be asked, what benefit do you claim from this right, never having made any attempt to redeem -as grantee ? To this we answer, that the purchase by Lansing was equivalent to an oifer to redeem. Lansing', during his life, (his. heirs now) united two rights ; those of purchaser under the senior judgx , r • „ , , ments and grantee. Lansing thus became both the man from whom redemption was to have been made, and the one to make it. This case is like the feudal one of extinguishment or merger, upon the meeting of two es- ° , , . ° . tates ; or like the remedies by operation oi law, retamer or remitter, mentioned in Blackstone’s Commentaries. Whenever two different rights and remedies center in the same person, he is righted by operation of law. We can-hot go and redeem as grantee, because we cannot apply to ourselves. Then there is, either no means of redemption whatever, or none short of paying our own lien. Suppose the case of an absolute grantee, who, for the better securing his title, or from any other motive, has bought and paid his money at a Sheriff’s sale of the premises, upon execu- ■ tion on a judgment against his grantor : must he yield to a subsequent incumbrancer, and submit to have his right divested, because he cannot both redeem and be redeemed ? The only difference between the case supposed, and the present one is, that we are a conditional, instead of being an absolute grantee ; but this does not preclude our right to redeem. If our estate is conditional, it is the subject of redemption in its turn.
    3. If we are mistaken in the construction of this act, we then ask, is it constitutional so far as it aims to divest our rights ? In this point of view, it can make no difference, that we have not bid high enough to save our lien. Within all the decisions on this subject, we can neither be deprived of our vested rights, nor have the legislature the power to modify them. The Court will, if possible, construe the parts of an act which have a tendency to interfere with such rights, by adjudging this not to be the intent of the legislature. It is a rule that statutes in violation of private right are void upon a principle common to stitutions. our free in-
    Placed between these conflicting claims, the Sheriff is under no obligation to give the deed to Sanders Van Rensselaer. His rights and liabilities, in a situation very similar to the present, are fully considered in Van Cleef et al. v. Fleet, 
    
    4. The judgment of Sanders Van Rensselaer was not confessed till long after the sale. He had ample security for ~is debt, beside the land in question, and gave a stipulation to exempt the person and personal property of the tie' fendant from execi4ion. Is it equitable to sustain the claim to a deed under such circumstances ? A defendant might thus in all cases, after his own right is gone by the lapse of time, come in and redeem indirectly, through a friendly creditor. I~ not such a proceeding in fraud of the stat' ute?
    Talcolt, (.~ttorney General) in support of the rule. That the judgment of Sana'er,e Van Rensseiaer was subsequent to the sale, can make no difference. It is equally, a lien upon the land, as if it had been rendered before. The sale to J~ansing did not divest the defendant's title. It is a mere. lien upon the land, as was holden by this Court in Bissell v. Payn. The a~t extends the right of redemption to all creditors, whose judgments are a lien on the debtor's real estate. Every judgment of a Court of Record is a lien upor~ lands of the debtor, which lie within the jurisdiction of the Court, though a decree of the Court of Chancery might not be so. There are certain judgments of inferior Courts, which are not a lien on lands. The act has in view the nature of the judgment, and wherever it will oper3te as a lien, the creditor may redeem.
    I agree, that the act, if it attempts to divest rights which are vested by the common law, is void. The legislature have no power to pass such an act. But what is this case ? The mortgagees, who complain that their rights are to be divested, took their mortgages subsequent, and, of course, subject to the judgment under which the purchase was made. Now, so far from divesting their rights, they are secured And improved by the very provisions of the statute, which is. censured as divesting them. Without this statute, their* rights would have been absolutely divested by the sale. No remedy whatever would have remained to the mortgagees,. 
      it is said, that, before the statute, they might have filed their bill, and have compelled a redémption according to the priority of these ¿iem. S o they might havé done in this instance, since the statute, which has even extended the time, within which this may be done by a mortgagee. Biit they have not chosen to file their bill for this purpose, and it is how too late.
    We are tojd- that Lansing, had he not been himself the purchaser, might have redeemed as a grantee within the 2d section of the act ; but it is now settled, both at law and in equity, that a mortgagee has a mere lien. He is not considered the grantee, or owner of the land. For all substantial purposes, the fee is in the mortgagor. The 2d section prdvides, that upon redemption by the defendant or grantee, the sale and certificate shall be null and void. It leaves the title of the grantee precisely where it was. Had the legislature intended to make the right of á mortgagee to redeem, the same with that of the grantee, they Would have provided him a title by which he could hold, till redeemed from in his turn. Considered as a grantee, the land would be irredeemable in his hands ; for there is no provision in the act by which it can be redeemed from a grantee. According to the reasoning on the other side, a mortgagee for $100, may, by redeeming as grantee, hold land indefensibly to any amount. By the act, (sess. 45, ch. 127, s. 2,) where the people are mortgagees, they are authorized to redeem lands sold by execution on a senior j udgment. Here we have a legislative construction against-the previous powers of any mortgagee to redeem, in any Case, under the statute in question.
    But suppose the mortgagee can redeem, he has made no attempt to do so ; nor has he come here to redeem. He is the purchaser : we claim to redeem of him. The act. provides, that we may do this by paying the purchase money and interest. This we have done. We are not bound to notice any other debts, unless) they are judgment debts, in the hands of one who has before redeemed. When we come, as here, to redeem of a purchaser, we are bound to. gay neither judgments nor mortgages. We have, nothings therefore, to do with Lansing’s rights as mortgagee. It ■ is only as purchaser that we are bound to notice him. .The act never intended to protect him as mortgagee. A perpetual auction is, it seems, to be kept'up, and yet the Court are asked to place such a construction upon the statute as stops' ,. , the auction at once.
    As to the idea of redress by operation of law—suppose a judgment creditor purchases the land ; in that case the right and the remedy are as much centered in him as in the mortgagee who purchases. Both are mere creditors, having a lien for their debts ; yet the former may be redeemed. Here is no inconvenience to the mortgagee. He should have bid to the value of the land. He would then, after paying the judgment, have held the surplus money to pay his mortgage. This is not, as has been supposed, mere ceremony or sound. As the one who should after-wards come to redeem, would be obliged to pay him the whole sum which he had bid, which is the only means of obtaining his money, it is, for him, a sound very necessary to be heard,
    
      
       (a) 3 Bl.,
      
    
    
      
      
         Fletcher v. Peck, 6 Cranch, The People v. Platt, 17 John. 195.
    
    
      
       id.
    
    
      
      
         17 John. 215.
    
    
      
       15 John. 147.
    
    
      
       20 John. 3.
    
   Woodworth, J. (after stating the facts.)

The judgment of Sanders Van Rensselaer, though after the sale, was a lien upon these lands, and entitles him to redeem as judgment creditor. It was objected, on the argument, that there was a stipulation not to take out execution upon this judgment. This was for the defendant’s benefit, and does not prevent its operating as a lien upon the real estate. Lansing, being a mortgagee of these lands, and the assignee of another mortgage on the same lands, chooses to become the purchaser. He died, and his representatives now insist that, in his right as a mortgagee, they are entitled to redeem in preference to Sanders Van Rensselaer. In limine there is a difficulty which interposes against setting up this claim ; for, as mortgagees, they have never attempted to redeem. But we are clear on the other ground, that they were never, as such, entitled to redeem. This is a casus omissus' in the statute. The right is claimed under the 2d section of the act which authorizes the defendant or his grantees-

to redeem; and the mortgagee is said tó be a grantee, within the meaning of the statute. Grantee is a word of well known signification : it means here, the purchaser of the es-late. The mortgagee is not the owner. The mortgage is a mere security for his debt. It is not such an interest as can be' sold on execution against him : nor does he come within the technical meaning of the word grantee. At the -session of 1822, the legislature thought it necessary to pass an act, enabling the people of the state, when mortgagees, to exercise this right of redemption as mortgage creditors. This is a legislative construction, and accords, in our view, with the plain interpretation of the statute under consideration. We are clear, that mortgagees are neither within its letter or spirit; and, consequently, the rule must be made absolute.

Sutherland, J. concurred.

Savage, Ch. J. (after adverting to the facts which appeared upon the motion for a rule to shew cause.)

It now farther appears, that the judgment of Sanders Van Rensselaer was by confession for a debt already secured by bond and mortgage, on lands, the sale of which was the consideration for the debt; and that he gave the defendant a stipulation, exempting his person and personal property from execution.

Under these circumstances, the Sheriff asks the advice of the Court, as to whom he shall convey ; and Sanders Van Rensselaer applies for a mandamus, commanding the Sheriff to convey to him.

This draws in question the construction of the “ act in addition to the act concerning judgments and executions f passed April 12, 1820. The 1st section of this statute provides, that all Sheriffs, after the 1st day of May then next, upon a sale of real estate by execution, instead of conveying absolutely, as heretofore, shall give a certificate of the sale, setting forth certain particulars ; and that if the property shall not be redeemed according to the act, the purchaser shall be entitled to a deed. A duplicate of the certificate is to be filed. This part of the .act has been complied with. The 2d section authorizes the defendant, his heii'S, executors, administrators or grantees, within one yéáí’ afte¡. ^he sale, to redeem, on paying the purchaser or the Sheriff^ the purchase money, with 10 per cent, interest.On making this payment, the sale and certificate are declared void. The 3d section authorizes any creditor, having a decree in Chancery or judgment at law, which is a lien on any real estate so sold, within 15 months after sale, in default of the defendant, to redeem the lands in the manner prescribed in the 2d section ; the defendant in all cases having preference of any creditor. The creditor redeeming acquires all the rights of the purchaser. Creditors may redeem from each other, on paying the redemption money before paid, with 7 per cent, thereon, and the amount of the liens, by judgment or decree, of the creditor from whom the land is redeemed. The 4th section directs the Sheriff, at the-expiration of the 15 months, to give a deed áccordingly, to’ the purchaser or creditor, if the property has not been-re-- • deemed by the defendant.

Upon this statute several questions have been ráisecF, some of which it is necessary to consider.

The object of the legislature undoubtedly wás, 1. To relieve the debtor, by preventing a sacrifice of his real estate, at Sheriff’s sale ; and 2. To enable creditors, other than the plaintiff, after a sale on execution, to satisfy their debts, by redeeming, where the property has been sold be-1 lów its value. This statute is evidently remedial; and in its exposition, it is otir duty to bear in mind the evil intended to be prevented, and the remedy proposed ; and so to construe the act, as to suppress the evil and advance the remedy.-1* It has been argued, and no doubt correctly, that the legislature did not mean to invert the order of liens upon real estate; and if the act has that effect, it must be owing to the negligence of creditors. If a junior creditor become a purchaser, though under a senior judgment, he must bid the amount of the older execution, and of his own lien, if he intends to secure himself out of the-property sold. Before the passing of the act, a sale, under an older judgment, destroyed all junior liens. The purchaser might thus make a speculation at the expense both of the debtor and junior judgment creditors. Now, these creditors may redeem; and the act thus operates beneficially both £>r them and the debtor, as the property is made to pay mere debts, and it probably goes at its value, if encumbered to that amount. The statute, then, has no injurious effect upon liens. A mortgagee is placed in no worse situation than he was in before the act, even allowing that he has not the privilege of redeeming like a judgment creditor, in this, the statute violates no right. It merely withholds from him a remedy extended to judgment creditors. It is, to be sure, somewhat remarkable, that the statute has not given him the same remedy. I can see no good reason for a discrimination between mortgagees and judgment creditors, as both have a lien on the estate. This must, however, be a casus omissus, unless mortgagees were intended to be embraced by the word grantee.

2. It was contended that mortgagees are to be considered grantees within the meaning of the act. But it has been repeatedly decided in this Court, that a mortgagee, out of possession, has only a chattel; that the mortgagor has the fee, and may maintain trespass against the mortgagee.

3. Another point raised is, that the judgment creditor, to be entitled to redeem, must have a subsisting lien at the time of the Sheriff’s sale. The statute expresses no such limitation : its terms are general. The only qualification necessary to entitle a creditor to redeem is, that his judgment or decree shall he a lien. In my opinion, it comports best with the spirit and letter of the act, to admit any creditor to redeem, whose judgment or decree is a lien at the time of redemption. The estate of the debtor is not changed by the sale and certificate. The purchaser acquires no title till he receives a deed. A creditor who obtains judgment subsequent to the sale, has a lien upon the estate ef the debtor, and may accordingly redeem.

In my opinion, therefore, Sanders Fan Rensselaer is entitled to a Sheriff’s deed, provided his judgment has been fairly obtained. It appears that he sold the debtor a farm, to secure the value of which, he took a mortgage on the same land, and 40 acres more, the latter being subject to a prior mortgage He persuaded the defendant to confess a judgment on the bond accompanying the mortgage, and as an inducement, deluded 200 dollars, and gave a discharge of the defendant’s uerson and personal property. In equity, he would not be permitted to enforce this judgment, to the exclusion of other creditors, having other security, which "we are to presume is sufficient. The transaction operates as a fraud upon the other creditors of the defendant, and particularly so apon the purchaser in this case, who must sustain a -heavy loss, .and is remediless at law, unless the purchase be retained. The facts would justify the presumption of connivancy with the debtor; and, in my opinion, if not enough to retder the judgment void as to other bona fide creditors, are sufficient to send the parties; into a Court of Equity, where justice may be done.

This Court may exercise a discretionary power, as. well in granting as in refusing a mandamus ; as where the end of it • is merely a private right, and where the granting it would be attended with manifest hardships and difficulties, &c..

In this view of the case, we should, perhaps, be justifiable in denying the motion ; but as our decision is not res judicata,i I assent to the issuing the mandamus, believing that the proper remedy for the representatives of Lansing is to be found in the Court of Chancery.

This being the opinion of the Court, Hopkins proposed that the rule be entered, with a clause expressly saving the rights of his clients in any future litigation.

Curia. Take your rule in that form.

Rule :

In 'the matter of the application of Sanders Van Rensselaer, for a mandamus to' the Sheriff of the county of Albany.

On motion of Mr. Attorney General, on behalf of Sanders Van Rensselaer, ■ for a mandamus to issue to Cornelius Van Antwerp, Sheriff qf Albany, commanding him to execute a deed of conveyance of the premises mentioned in his application, to the said Sanders ; and on reading affidavits, stating the facts on which the same is grounded; and on hearing Mr. Hopkins on behalf of the representatives and assignees of Abraham A. Lansing, deceased, opposing the said motion ; and on reading affidavits shewing the facts on which that opposition is founded—It is ordered, that a writ of mandamus issue to the said Cornelius Van Antwerp, Sheriff, &c. according to the said motion, without prejudice to the representatives and assignees of the said Abraham A. Lansing, in any future litigation.. 
      
      
         Sess. 45, ch. 127, s. 2.
      
     
      
      
        Jackson v. Willard, 4 John. Rep. 41. Coles v. Coles, 15 id. 319.
     
      
      
        Runyan v. Mersereau, 11 id. 534.
     
      
      
         Bissell v. Payn, 20 id. 3.
     
      
      
         Bac. Ab. Mandamus, (E.)
      
     