
    HENRY BOWERS, Plaintiff, v. WILLIAM H. ARNOUX, Defendant.
    A certificate of the sheriff of the sale of real estate, filed with the county clerk, prior to 1857 (4 Edm. Stat. 634, making it the duty of the clerk or register to record the same), unless it was recorded, is void as against subsequent purchasers whose conveyance was recorded before the deed of the sheriff following his certificate was made and recorded.
    The written receipt of the sheriff given (after the sale of the real estate and the execution of his certificate) to the effect that he had received the full amount of the purchase money and interest at ten per cent, from the defendant in the execution for the purpose of redeeming the property sold, was substantially a certificate of redemption, such as he was required to execute officially by section 5 of the statute of 1847, to the person making a redemption; and on the trial of an action of ejectment, the plaintiff being the grantee of the person to whom the receipt was given, was entitled to read the same in evidence on the signature1 being proved, although it had never been proved, acknowledged or recorded before that time. Held, that it was entirely unnecessary for the parties interested in said receipt and redemption to have the same proved, acknowledged or recorded, although the premises had been sold and a certificate of the sale given by the sheriff to the purchaser, and a duplicate certificate filed in the office of the county clerk pursuant to the statute.
    The sale of the premises and the certificate of sale of the sheriff became and was null and void by the execution of the receipt in question, and the premises sold, reverted or revested in the defendant in the execution as his original estate, or as if it had never been sold under the execution. Spencer, J., dissenting.
    
      Before Barbour, Ch. J., and Freedman and Spencer, JJ.
    
      Decided December 31, 1871.
    Bill of exceptions heard in the first instance at the general term.
    The exceptions and the facts of the case appear fully in the opinions of the judges.
    
      R. W. Van Pelt, for plaintiff.
    
      Wm. H. Arnoux, for defendant.
   By the Court.—Barbour, Ch. J.

This is an action as in ejectment to recover the possession of a parcel of land in this city, of which the plaintiff claims to be the owner.

The answer denies the alleged ownership of the plaintiff, and avers that the defendant is the owner, under and by virtue of a sheriff’s sale of the promises and sundry mesne conveyances.

Upon the trial it was claimed and admitted by both parties that, in March, 1846, Francis Price was seized and possessed of the premises in fee.

The plaintiff then proved a conveyance of the'land from Price to J. F. Barley, in November, 1851, by a deed containing full covenants of warranty, and also deeds from Barley to Livingston, from the latter to Nash, and from Nash to Braisted, and from him to the plaintiff, granting the same premises.

The defendant then read in evidence a certificate of J. J. Y. Westervelt, sheriff of New York, dated April 13, 1848, stating the sale by him upon execution, of all the estate and interest of Price in the land to Charles O. Bichardson, together with the judgment, execution, advertisement, &c.$ under which such sale was had.

Also, an assignment of that certificate made by Bichardson, in Hovember, 1866, to J. B. Findell, a deed executed by John Kelly, sheriff of Hew York, in October, 1867, reciting the above sale, &c., and conveying the premises to Findell; a deed from Findell to T. Thorpe, and a conveyance from the latter to the defendant.

The plaintiff excepted to the decision admitting this deed.

The defendant also read in evidence a deed of assignment executed by Price in September, 1847, to John J. Batting, receiver, &c., as follows:

'Supreme court. In equity, late in chancery, before the vice-chancellor of the first circuit. Thaddeus B. Wakeman and Ebenezer Seeley ». Francis Price. Assignment of receiver. This indenture, made this 10th day of September, in the year one thousand eight hundred and forty-seven, between Francis Price, of Hudson county, in the State of Hew Jersey, of the first part, and John J. Batting, counsellor at law, of the city of Hew York, receiver of the estate and effects hereinafter referred to, appointed by the court of chancery of the city of Hew York, of the second part.

Whereas, in and by an order of the said court of chancery of the State of Hew York, before the late vice-chancellor of the first circuit, a certain cause wherein Thaddeus B. Wakeman and Ebenezer Seeley are complainants and the said Francis Price is defendant, it was ordered that it be referred to David B. Garniss, one of the masters of this court residing in the city and county of Hew York, to appoint a receiver of the money, property, things in action, and effects of the above named defendant, Francis Price, with the usual powers and authority of receivers in like cases, and that the said master take from the said receiver and file with the clerk of this court the requisite security, and it was further ordered that the above named defendant. Francis Price, assign, transfer, and deliver to such receiver on oath, under the direction of the said master, all the property, money, equitable interests, things in action, and effects of the above named defendant, Francis Price, with all the books and papers relating thereto, and the evidences thereof ; and that the above named defendant, Francis Price, appear before the said master, from time to time, and produce such books and papers, and submit to such' examination as the said master shall direct in relation to the said property, equitable interests, things in action and effects, as by reference to the said order granted in said cause will more fully appear; and whereas the said party of the second part has been duly appointed such receiver, and has given and filed the requisite security pursuant to the rules and practice of the said court, and to the provision of the said order.

How, this indenture witnesseth that the said party of the first part, in obedience to the said order and in consideration of the premises aforesaid, and of the sum of one dollar to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has conveyed, assigned, transferred and delivered over, and by these presents does convey, assign, transfer and deliver over unto the said party of the second part, under the direction of the said master, testified by his approval indorsed hereon, all estate— real and personal—chattels real, moneys, outstanding debts, things in action, equitable interests, property and effects, whatsoever and wheresoever, • of, or belonging or due to, the said party of the first part, or in which had any estate, right, title or interest at the time of 'filing the bill of complaint in the above recited suit in chancery, and which bill was filed on the 8th day of April last, and also all deeds, writings, leases, muniiments of title, books of account, papers, vouchers, and other evidences whatsoever relating or appertaining thereto. To have and to hold the same unto Mm, the said party of the second part, as snch receiver as aforesaid-, and to Ms successors and assigns, subject to the present and future order, direction or control of the said court of chancery in relation thereto.

In witnéss whereof, the said party of the first

[l. s.] part has hereunto set his hand and seal the day and year first above written.

Francis Price.

Sealed and delivered in presence of

David E. Garniss.

The plaintiff then proved that Isaac Adriance was the attorney of Price in 1849, and that Price, Adriance and Westervelt, were all dead, and he then read a receipt wholly written and signed by Westervelt, with a memorandum thereupon, in the handwriting of Adriance, which it was proved were delivered to H. Lawrence with other mumments of title, upon the purchase of lands by him from Price, in 1852. The receipt and memorandum are as follows :

Supreme Court.

Cornelius Brinokerhoee & Henry Brinckerhoef j j>igelow _Erancis Price. \ Attorney.’

Eeceived, Hew York, April 10, 1849, from Francis Price, the above named defendant, seventy-two yihydollars, said money so paid by Mm to redeem property sold under an execution in the above entitled cause on the 13th day of April, 1848, situate in the Twelfth Ward of the city of Hew York, the above amount being in full for the purchase money and interest at ten per cent., for all the property sold by me on that day under said execution.

$72^

(Signed) John J. Y. Westervelt,

Sheriff, &c.

On the originial is the following memorandum in handwriting of Isaac Adrian ce, Esq. :

“ 1 asked Mr. Westervelt whether that amount was all that was necessary to redeem all the property sold by virtue of the execution ; he answered that it was ; as I told him I wanted to redeem all that was sold 10th April, 1849.”

(Signed) I. Adeiaxce.

“I paid the sheriff the above money and took the above receipt for F. Price.”

A deed from Latting, the assignee, to Price, dated August 30, 1850, was also read by the plaintiff, which deed, after reciting, among other things, the assignment to the former, the fall satisfaction of the creditors in that suit, &c., reconveyed the premises which are the subject to this action to Price.

Upon this evidence the court directed the jury to find a verdict for the defendant, and ordered that the exceptions be heard at the first instance at general term, and that the judgment be suspended in the mean time, to which decision and ruling the plaintiff excepted.

That exception, and one taken to the admission of the deed from Kelly, sheriff, to Findell, are the only exceptions in the case.

As the plaintiff in an action of ejectment must rely wholly upon the strength of his own title, and can take no benefit from the weakness of that of his adversary, it was immaterial whether the defendant was in possession under an assignment of the certificate of Sheriff W estervelt or the deed of Sheriff Kelly (Jackson on Real Actions, 5 ; Adams on Eject. 32, 285 ; 1 Chit. Pl. 173).

The deed, therefore, was irrelevant as evidence, and might properly have been excluded if the objection had been based upon that ground, but it was not, although the objection made was a specific one; even in that case, however, it is difficult to see how the admission of the paper could have worked any harm or advantage to either party.

That exception should therefore be overruled.

The great question in the case, and the only remaining one is, whether the learned judge erred, in directing the jury to find a verdict for the defendant upon the evidence.

The defendant’s counsel claims that, under the statute of champerty (1 R. S. § 739), the deed to the plaintiff was void, for the reason that the property was then in possession of a party claiming ownership under an adverse title. It is sufficient to say, in regard to that, that the case does not show any fact touching the actual possession of the premises, beyond an averment contained in the complaint, which states that the defendant was in possession when the action was commenced.

There is no evidence in the case that the sheriff ’ s certificate of sale was ever recorded, and it affirmatively appears that the deed of Sheriff Kelly was not recorded until after the deed under which the plaintiff claims title was delivered to and recorded by him. The fact may therefore be legally assumed that the plaintiff, as well as each of the intermediate grantees from Price, purchased in good faith, without notice of the certificate of Sheriff Westervelt, or of Sheriff Kelly’s deed, and for that reason, it must be held, as matter of law, that the plaintiff’s title is perfect. For the statute of executions (3 H. 8. 365) requires the sheriff to make and sign duplicate certificates of sale, to file one of them in the office of county clerk, and deliver the other to the purchaser, and it further provides that such certificate may be proven or acknowledged in the manner required by law to entitle deeds to be recorded (§§ 43, 3, 4). The purchaser was therefore in a position which would have enabled him to record his certificate if he had seen fit. (It may be, remarked, in passing, that the act of 1857, 4 Edm. Stat. 634, now makes it the duty of the clerk or register to record the certificate when filed.) The first section of the statute concerning the proving and recording of conveyances (1 R. S. § 755) enacts that every conveyance not recorded as therein provided for, shall be void as against any subsequent purchaser in good faith, &c., and section 38 declares that the term “conveyance,” as there used, shall be construed to embrace every instrument in writing, by which any estate or interest in real estate is created . . . or by which the title to any real estate may be affected in law or equity, &c.

It is true that the right and title of Price were not absolutely divested by the sheriff s sale and certificate until the expiration of fifteen months from the time of sale. But it can hardly be doubted that the sale and certificate conferred upon the purchaser, at least an equitable lien and charge upon the interest in the land, ab initio, such an interest as would, upon the execution to him of a deed by a sheriff, become a fee, for certain purposes, from the time of the sale (See 2 R. S. 373, § 61 ; Smith v. Colvin, 17 Barb. 157 ; Schermerhorn v. Merrill, 1 Barb. 512.

Again, the evidence given upon the trial was sufficient to establish the fact that the premises were duly redeemed by Price from the sheriff’s sale. For first: Price being the debtor in the judgment upon which the execution was issued, had a right to redeem by the terms of the act (2 R. S. 370, § 46 ; Chautauque Co. Bk. v. Risley, 19 N. Y. 373 ; Borden v. Moore, 18 D. 251), and even if the right of redemption given by the statute is to be considered as a right in rem which cannot be exercised by a judgment debtor who has ceased to have any estate or interest in the land which is the subject of redemption, as one branch of the supreme court seems to have held in Husted v. Dakin (17 Abb. 137), still Price had a right to redeem. For, although his conveyance to Latting as trustee was, in terms, an absolute grant to the latter and his successors in fee, for the purposes of the trust, without any expressed reservation of an estate in reversion, such estate in reversion was, in fact, reserved to the grantor by section 67 of the statute of trusts to the same extent and effect as it would have been had the following language of the statute been incorporated in the deed ; “When the purposes for which an (this) express trust shall have been created shall have ceased, the estate of the trustee shall also cease” (1 R. S., 730 ; see also Id. 723, § 12 ; Co. Lilt. 142, b ; 2 Bl. Com. 172 ; 1 Steph. Com. 290 ; 4 Kent's Com. 354).

In either case the moment the trust should be satisfied by the payment of the debt and charges, either by the judgment debtor, or out of the proceeds of a portion of the trust property, the remainder of it would revert to and revest in, the grantor as his original estate, reservéd to him as an estate in reversion.

Second. The evidence was sufficient to justify the jury in finding as matter of fact, if the question had been submitted to them, that Price did, within twelve months after the sale, pay to Sheriff Westervelt the sum for which the land was sold, together with the accrued interest, and thereby redeem the premises.

The receipt of Sheriff Westervelt was, in substance and effect, such a certificate of redemption as he was required by section 5 of the statute of 1847 to execute officially, to the person making the redemption (see 4 Edm. Stat. 631), and the plaintiff was therefore entitled, under the express provision in that regard, which is contained in section 6 of the statute, to read the same in evidence, as he did. It is true that Price might, if he had seen fit, have caused such certificate to be proven or acknowledged and recorded.« But that was wholly unnecessary, inasmuch as the certificate of sale had not been recorded, and it would have involved a useless expense.

Upon and by the redemption of the premises, the sale of the same by the sheriff, and his certificate of such sale became and were null and void (2 Rev. Stat. 371, § 49); when, therefore, the lands were re-conveyed by Latting to Price, the latter became the absolute owner thereof in fee simple, and the deeds read in evidence by the plaintiff upon the trial, proved that such estate in fee was then in him. For this reason, as well as because the plaintiff was a purchaser in good faith, without notice of any adverse claim or possession, the plaintiff and not the defendant was entitled to a verdict, and it follows that the learned justice erred in directing the jury to find in favor of the defendant.

The verdict should be set aside and a new trial awarded, with costs to the plaintiff, to abide the result.

Spencee, J. (dissenting).

This is an action of ejectment brought by the plaintiff against the defendant to recover possession of certain lots on the westerly side of Fourth avenue, between one Hundred and Fourteenth and „ one Hundred and Fifteenth streets, in the city of New York.

The cause was tried before Judge Jones and a jury, at a circuit of this court, and a verdict for the defendant directed by the court.

It was admitted on the trial that in the year 1846, Francis Price was the owner of the premises, and the common source of the title claimed by both parties.

On the 9th day of March, 1846, Cornelius Brinckerhoff and another recovered a judgment against the said Francis Price, for the sum of four thousand three hundred and ninety-five dollars and twenty-eight cents, in the supreme court of the State of New York, which judgment was duly docketed at the time of its entry, and became a lien upon the real estate which is the subject of this controversy.

On the 10th day of September, 1847, the said Francis Price, under an order or decree of the court of chancery of the State of Yew York, conveyed all his estate, real and personal, to one John J. Latting, in trust to pay certain debts mentioned in said order or decree, by which conveyance, the legal title to said premises vested in said Latting,. subject to the lien of said judgment.

On the 13th day of. April, 1848, under and by virtue of an execution issued upon said judgment in favor of said Brinckerhoff and another, the sheriff of the city and county of Yew York, duly sold all the right, title and interest of said Price, in and to said premises at the date of the recovery and docket of said judgment, to one Charles O. Eichardson, and duly filed the certificate of said sale in the office of the clerk of said county of Yew York.

On the 10th day of April, 1849, the sum of seventy-two dollars and five cents (which sum was conceded by the parties to have been ■ sufficient to pay the amount required to be paid for the redemption of said premises from said sale) was paid to said sheriff, and a receipt was given by said sheriff for the sum to one Isaac Adriance. The receipt recited that the money was received from Francis Price, for and on account of the redemption of said premises from said sale, and upon the same paper and below the receipt, was a memorandum in the handwriting of said Isaac Adriance, then an ■attorney and counsellor at law in practice, which reads as > follows : “I asked Mr. W estervelt whether that amount was all that was necessary to redeem all the property sold by virtue of the execution % He answered that it was. I told him I wanted to redeem all that was sold ; I paid the sheriff the above money, and took the above receipt for F. Price.”

The question of the admissibility of the receipt was discussed before the court on the trial, who decided to admit the same in evidence. As the verdict was for the defendant, this question does not arise on this review of the exceptions in the case.

Edgar Ketchum, a witness, testified that Mr. Adrian ce was sometimes retained as the attorney and counsel for Francis Price; but the witness had no knowledge of their relations in this transaction. This receipt was never filed nor recorded in any public office, but was kept in the private custody of Mr. Newbold Lawrence. There was no evidence that the sheriff’s grantee, or any subsequent grantee under him of the premises, had any knowledge of the existence of the said receipt.

On the 13th day of August, 1850, the said John J. Latting, reconveyed to the said Price, all the property then in his hands, which had been before that time conveyed by said Price to him as stated, including the premises in question.

On the 20th day of November, 1851, the said Price-" conveyed the premises to one John F. Darby, and by divers other conveyances, in direct line from said Darby, the title of said Darby to said premises became vested on or before the 19th day of October, 1867, in one Martin Braisted, who conveyed the same on the 1st day of November, 1867, to the plaintiff. In the mean time, while the said Braisted claimed title to the premises, and on the 19th day of October, 1867, the sheriff of the city and county of New York duly executed and delivered a deed of conveyance of said premises to Isaac B. Findell, the assignee of the purchaser at said sheriff’s sale (the said Charles O. Bichardson), who, subsequently and soon after the conveyance by the sheriff, conveyed the said premises to one Thomas Thorpe, who conveyed the same to the defendant, without notice of. the alleged redemption on the 26th day of March, 1868, in consideration of the sum'of nine thousand five hundred dollars paid by the defendant.

The plaintiff commenced this action on or about October 14th, 1868, and Ms complaint alleges substantially that he, the plaintiff, has lawful title, as the owner in fee simple, to the said premises (describing the same), and that the defendant is in the possession of the same, and unlawfully withholds the possession thereof from the plaintiff, and concludes with the usual form of prayer for possession and damages for withholding the same.

The defendant admits by his answer'that he was and is in possession of the premises, claiming an estate in fee simple to the same under the sale and conveyance by the said sheriff, and denies the plaintiff’s title.

Upon this issue the cause was tried, and the evidence given as heretofore stated. The case was heard at the general term upon a case and bill of exceptions.

The first exception by the plaintiff was taken to the ruling of the court on the trial, upon the question of the admission of the deed of conveyance from the sheriff to the said Findell, pursuant to the sale under the execution. As I concur in the opinion of Ch. J. Barbour, that this exception was not well taken, I shall not discuss the same.

The only other exception of the plaintiff was to the ruling and direction of the court, directing the jury to find a verdict for the defendant, and this exception raises all the questions of law applicable to the case at bar, and which require consideration.

With due respect to the opinion and conclusions of the learned Chief Justice and Judge Freedman, who were my associates on the hearing of this case at general term, I feel compelled to dissent from the same, and to hold the ruling and direction of the judge on the trial'to be correct in the premises, and that the exception thereto should be overruled and judgment rendered for the defendant on the verdict.

The defendant’s counsel claimed on the trial that the plaintiff was bound to allege and prove that he was or had been in possession of the premises in question ; and as he had neither alleged nor given proof of his possession, nor of the possession of the person from whom he derived his title at the time of the conveyance, that he was not entitled to recover.

There is much to be considered and said in favor of this position of the counsel in a case like the one at bar.

The authorities cited by the counsel unquestionably establish the legal position that a grantee who receives a grant of land, occupied and possessed by a person claiming title adversely to the grantor, takes nothing by the grant as against the party holding the adverse possession, for the grant is void, as against him. Such grantee cannot sue and recover the possession in Ms own name. The recovery must be in the name of the' grantor who had actual possession, or who held the legal title at a time when no adverse possession was maintained against the same.

But I fail to recognize from this position that in cases of ejectment the plaintiff is bound to allege and prove possession.

Proof of the legal title in the plaintiff is prima facie sufficient. Under the practice prior to the code, he must have averred in his declaration that on some day specified, after his title accrued, he was in possession, and that afterwards, on a day stated, the defendant entered into the premises, and unlawfully withholds from the plaintiff the possession thereof, &c., &c. ; in other words, he must allege—1st. Possession in himself ; 2nd. Ouster therefrom by defendant; 3rd. The unlawful withholding of possession by defendant (2 R. S. 304, § 7). I think this, however, only directs as to the form of the pleading only, and it does not follow that the plaintiff was bound to establish all these allegations by proof, for a subsequent section (2 R. S. 306, § 25) provides : “It shall not be necessary for the plaintiff to prove an actual entry under title,” &c.., &c., but if the defendant contests the title of the plaintiff, because the grant of the premises was made to him, when adverse possession was held against the title of the grantor, he must prove the fact after plaintiff has established his claim of title. I think the onus probandi lies with the defendant to establish that fact; it shall be sufficient for him to show a right to the possession of such premises at the time of the commencement of the action, as heir, devisee or purchaser, or otherwise. This is, undoubtedly, the rule of evidence in ejectment at the present time, although the form of the pleadings and the practice under the code has been changed by the adoption of the code.

If my decision rested solely upon this point of the defense I should hold against the defendant; but there are other points in favor of the defendant to be considered, that I hold to be sufficient to support and sustain the rulings of the court below, independent of this question.

First. The defendant contends that there was no legal or valid redemption of the premises from the sheriff’s sale. That even assuming it as a fact, that Price, the judgment debtor, did pay the money to the sheriff and take the receipt in question, and did do all that laid within his power to effect the redemption of the land in his (Price’s) favor ; that there was not, in fact and law, a redemption of the premises from the sale, for the reason that at the time of the proposed, or attempted, or apparent redemption, Price had no right' to redeem the same ; that he was not the owner of the premises at that time; that he had before that time conveyed all his estate and title to the same to one Latting, who was the true and lawful owner of the same, at the time of, and continued to be such owner for some time after, the said alleged redemption, and that he (Latting) was the only person who had the legal right and power to redeem the premises from said sale, and therefore the redemption claimed to have been made by Price, when he had not the legal title to the premises, was void and of no effect.

The plaintiff, in reply to this position, held that the conveyance to Latting was a trust conveyance, and also an involuntary conveyance, by order of the court of chancery, and that the title to the property, on the payment of the debt that was the subject of the trust, would revert to him by operation of law, without a re-conveyance, and therefore that Price’s interest in the premises was of that character that entitled him to redeem the same.

There can be no doubt that in a certain sense the conveyance by Price was an involuntary act, but it has been decided in the court of appeals that the legal effect of an act done in obedience to the decree of a court of competent jurisdiction, is the same as a voluntary act (Chatauque Co. Bank v. Risley, 19 N. Y. 366), so that the law applicable to this case is that applicable to any trust deed executed by any debtor, and in such case there can be no doubt that there is a resulting trust to the debtor, after the payment of all the debts to secure which the trust instrument was executed.

By the recitals in the deed of reconveyance from Latting to Price, it affirmatively appears that the purposes for which this trust was created had not been satisfied on the day when the payment was made to the sheriff. The legal title was, therefore, on that day solely vested in the trustee. When there is a valid trust for the sale of land the party creating the trust, and those holding derivative titles under him, have no rights, legal or equitable, until the purposes of the trust are satisfied (Briggs v. Davis, 21 N. Y. 574).

The statute in regard to redemptions is in the following language:

Such redemption may be made—

“1. By the person against whom the execution was issued and whose right and title were sold in pursuance thereof; or,

“2. If such person be déad, by his devisee of the premises sold, if the same shall have been devised ; and if the same shall not have been devised, by the heirs of such person; or,

“ 3. By any grantee of such person who shall have acquired an absolute title by deed, sale under mortgage or under an execution, or by any other means, to the" premises sold, or to any lot, tract, parcel or portion which have been separately sold ” (2 Edm. St. R. S. 384, § 46).

Under the decision of Briggs v. Davis, John J. Lathing, on the 10th day of April, 1849, the date of the said payment, was the grantee of Price, the debtor, and had acquired an absolute title by deed, and then held such absolute title.

Is the position of the plaintiff’s counsel correct, that Price, the judgment debtor, had the right to redeem, notwithstanding his trust conveyance to Latting ? Ho authorities are cited in support of the affirmative, but the counsel rests solely upon the express letter of the statute. The defendant’s counsel, on the other hand, cites the case of Husted ■». Dakin, 17 Abb. 137, in opposition to this view. In that case, one Dakin owned certain premises which were subject to a mortgage and to certain judgments; on the 16th March, 1857, the sheriff sold Dakin’s right, title and interest in the premises under execution issued on one of said judgments, to one Husted. On the 18th day of April, 1857, part of the property was sold under foreclosure of the above mortgage, and a large surplus resulted, and on the 39th day of June, 1857, after the deed in the foreclosure sale had been delivered, Dakin, the judgment debtor, duly tendered to the sheriff, who made the sale, the requisite amount to redeem. A reference in regard to the surplus moneys was subsequently ordered, and on the proof the referee awarded the whole surplus to Husted, the purchaser of Dakin’s right, title and interest. The cause came before the court on a motion to confirm the referee’s report. The justice, after advisement, confirmed the report, and the same was on this point affirmed. The opinion delivered at special term passed directly upon this question. “It was conténded on the argument,” says the justice, “that this sheriff’s sale was null and void, by reason of the offer of Dakin to redeem the premises from the sale, and the tender by him to the sheriff of, the amount bid by the plaintiffs thereat. In June last, after the plaintiffs had become the absolute owners of the property, by reason of the purchase on. the mortgage sale, and the delivery to them of the sheriff’s deed on such sale, the defendant Dakin tendered to the sheriff the amount bid by plaintiffs on the sale on the 16th of March, 1857.

“The difficulty in regard to this redemption is, that at the time it was mad'e the defendant Dakin had no right, title or interest in the premises sought to be redeemed. The plaintiffs had succeeded to all his rights ; they had in fact become the-assignees by virtue of the purchase and sale on the 18th of April, 1857. This offer to redeem was therefore of no more import or effect than that of any stranger; and it would not, 1 am sure, be contended that an offer by such stranger to pay the bid on the sheriff’s sale and claim from the sheriff the transfer of the purchaser’s rights, would entitle him thereto, or would divest that purchaser of rights thus acquired, and render the sale nuE and void. It seems to me that the offer of Dakin to divest those rights is equally ineffectual; and that such an offer did not render this sale void, and thus revive the lien of the judgments by virtue of which it was made.”,

I can find no case in this court that conflicts with the views here expressed, which fully agree with my own on this subject, and therefore I feel bound to follow that decision until a higher tribunal shall lay down a different rule of law. Independent of authority, I hold, on principle, that this rule is sound. The right acquired by a purchaser at a sheriff’s sale under execution, is absolute at the moment the sale is made, against all the world, except those within the purview of the statute. The persons entitled to redeem, and the mode of redemption, are clearly laid down. “The statute is plain and peremptory in this respect, and cannot be disobeyed or disregarded. It is an express and positive requirement, and must be strictly followed, or nothing is accomplished” (Gilchrist v. Comfort, 34 N. Y. 241). The statute uses a phrase in the alternative that has been shortened in form, but it is of the same essential meaning in deeds, “the party of the second part, his heirs or assigns.” How, it can never be contended that where the heirs have legal rights the party has also, for nemo est haeres viventis (Campbell v. Rawdon, 18 N. Y. 416) ; nor can it be more successfully argued that where the estate has passed to the assigns the party can exercise a legal right over the estate. The jus disponendi is gone for ever. To shorten, in like manner, the statute in question, it would read “the judgment debtor, his devisees, hems or assigns.”

If there were, within the time of redemption, a valid devise of the property, the heir (not being such devisee) could not redeem. If there were a legal transfer of the property by the debtor, and he should die before the expiration of the time to redeem, the heir could not redeem, for such heir would be a stranger. I hold that, under the statute, only one person or class named can redeem, and that class last named has the better right. If the heir cannot redeem as against the assigns, what better right has the debtor under the statute % The right of redemption is a right in rem, and can only be exercised by one who has the legal title to the premises at the time of the alleged redemption. Therefore, I hold that as Latting had the absolute title by deed, on the 10th day of April, 1849, the payment to the sheriff was not, and could not be, a redemption within the meaning and intent of the statute.

The only thing that has seemed to be against this view is one single sentence in an opinion writteno by Judge Comstock, in the case of the Chatauque Co. Bk. v. Risley, 19 N. Y. 373 ; but the point was not presented in the case, seems not to have been discussed by the counsel, and apparently this was inadvertently written. If it had been the result of reflection, I should have given this expression the consideration due to that eminent jurist, but, under the circumstances, I am bound to follow the express adjudication of the general term of the supreme court on the question.

There is another question to be considered in this case that relates to and bears upon the right of the defendant, as a bona fide purchaser, to the possession of the premises, as against the right and title of the plaintiff, even if a valid redemption had been made.

Before the act of 1847, hereinafter referred to, the legal result of a redemption from a sheriff’s sale was to make the title under the certificate of sale entirely null and void, without any evidence in writing or of record to show such redemption.

This was in effect similar to the common law in respect to the conveyance of real estate, which, in the early period of English history, was usually without writing (4 Kent Com. 491). With the increase of knowledge, conveyance by writing became more prevalent, and by the act of 29 Chas. II., no conveyance could be operative without an instrument in writing, duly sealed. The next great advance in legislation for the protection of strangers was our recording act, by which all persons interested might ascertain the names of the rightful owners and their respecctive interests in real property; but there were involuntary sales of real estate which were mot affected by such legislation. This mode of obtaining payment of debt by the forced sale of the debtor’s property through the officers of the law is of modern origin, and was entirely unknown to the common law. It is worthy of note that the act that originated our modern process of sales by execution was passed in 1732, in the 5 Greo. II., with especial reference to the American colonies, and made land, hereditaments and real estate therein chargeable with debts and subject to sale under execution the same as personal property (4 Kent, 429). At first no provision was made for redemption from such sales, but this was afterwards incorporated in the law. And to enable persons to know of such sales when they were made redeemable, it was enacted that the sheriff or officer who made the sale should file in the proper office within ten days after, the sale, a certificate stating the facts of such sale, so that all persons might know of the rights acquired by the purchasers under the sales so made. Bat the provision for recording such certificate was not enacted until 1857, and applied only to future certificates. I notice that the learned Chief Justice considers that the defendant’s title was defective, by reason of not complying with the law in this regard. The subsequent payment to the sheriff by the person entitled to redeem was a complete revocation of the sale, and rendered the title of the purchaser null and void; but no provision whatever was made in the original statute by which the public could be advised of the fact.

This defect in the law was the subject of legislation in the year 1847, when an act was passed entitled “ An act to amend title five of chapter six of the third part of the Revised Statutes of ‘execution against property.’ ” The first four sections of this law apply specifically to the acts of creditors, but sections 5 and 6 are as follows :

“ Sec. 5. Whenever any redemption shall have been made, of any real estate so sold, it shall be the duty of the officer making such sale, or of any other person who may lawfully act in his behalf, to execute to the person making such redemption, his certificate, truly stating all such facts transpiring before him at the making of such redemption, as shall be sufficient to show the fact of such redemption.”

“Sec. 6. Such certificate may be proved or acknowledged as deeds are required to be, to entitled them to be recorded, and being duly recorded in the clerk’s office of the county where the real estate so sold is situate, shall have the same effect as against subsequent purchasers and incumbrances as deeds and conveyances duly proved and recorded ; and such certificate or the record thereof, or a duly authenticated copy of such record, shall be received in all courts and places as prima facie evidence of the facts therein stated” (3 Laws 1847, ch. 410, p. 508 ; 4 Edm. Stat, at Large, 630).

These sections apply to redemption by the judgment debtor as well as the acquii’ement of title by the other judgment creditors. It provides the remedy for the defect in the former law, and is to be construed liberally. It enables the redeeming debtor to put the evidence of his act on record for all time, and gives him and his grantees the means of proving it after all the parties to the transaction have passed away, but it puts him in the same position that the recording act puts the grantee in. It does not compel the party to file his certificate, but it malms his title dependent upon it. As jbetween grantor and grantee, the delivery of the deed instantly transfers the title, and as between the holder of the certificate and the judgment debtor, the title ceased on due payment. This rule in respect to a deed does not prevent the transfer of the title from such grantor to a bona fide purchaser without notice of the prior deed, and so tire bona fide transferee of a certificate of sale takes a like good title when he purchases without notice of redemption. Otherwise the mere act of payment would have more solemn legal weight than the delivery of a sealed instrument. In the case at bar, the party receiving the certificate, instead of recording the same, chose to keep the paper in his possession without giving an opportunity to innocent parties to be put upon their guard. It is in such case the sound rule that where one of two parties must suffer, he should be exonerated who is guiltless, and he should be held liable who causes the wrong to be done.

It may be suggested, however, that the recording of the deeds from Latting to Price, and from Price to his successive grantees, gave notice to the world of this claim, but there is no force in this suggestion, for the reason that the holder of the certificate after the time to redeem has elapsed, has no legal title to the premises. Until the delivery to him of the sheriff’s deed, he has only an absolute equitable or inchoate title to the premises, and the owner of the fee continues to have the legal title (Farmers’ Bank v. Merchant, 13 How. 10, 12 ; Smith v. Colvin, 17 Barb. 157, 161). Therefore, Mr. Latting, notwithstanding his failure to redeem the premises, had a title that he could convey, and that he did convey, and that Mr. Price subsequently conveyed ; a legal title subject to be defeated by the de • livery of the sheriff’s deed, a title that might have been made absolute on obtaining a simple release from the holder of the certificate, a title that authorized the party to retain possession of the premises granted. But when the sheriff’s deed was delivered, then that title was extinguished and the debtor or owner divested of his estate, providing there had been no redemption, and in this case, by reason of the failure of the holder of the receipt, treating it as a sufficient one, to give the world notice of the redemption, this case is to be treated as if there had been no attempt made to redeem.

There was in this case a certificate of sale which was filed in the office of the clerk of the city and county of Hew York. The bill of exceptions does not state the date of the filing, but as no question was made thereon, and as the law imposed upon the sheriff the duty of filing such certificate within ten days after the sale, the presumption of law is that such filing was done within the prescribed time (Hartwell v. Root, 19 Johns. 345). The defendant paid the sum of nine thousand five hundred dollars for the premises in question, which seems to have been its value at the time of this purchase. He was a bona fide purchaser without notice and without having it in his power by any means to obtain notice or information. If this cause is decided in favor of the plaintiff, and the law is decided to be that the holder of a certificate of redemption may conceal the same to the injury of others without any liability to himself, there can be no safety in passing titles that are derived through deeds from the sheriff under sales on execution. This construction will in the end work a great wrong to judgment debtors themselves, for no party would be willing to bid the fair value of premises so sold and take such risk, so that where no redemption in fact should be made the judgment debtor would be deprived of his property for a mere fraction of its value. I cannot believe that such a construction of the.law was ever intended.

I think the learned Chief Justice errs in his views upon the effect of the provisions of the recording act. Until the law of 1857, I believe that it was the invariable practice of the members of the legal profession to search for sheriff’s certificates filed in the county clerk’s office. This is a public matter of which the courts take judicial cognizance (Swinnerton v. Columbian Ins. Co., 37 N. Y. 174). If this decision is correct, the universal action of the bar and the officials throughout this State has been wrong, and every title taken under a sheriff’s certificate is in jeopardy. An examination of the law in relation to executions (2 Rev. Stat. § 3, 44, 45), however, shows that it was never contemplated that such certificates of sale should be recorded, which construction is strengthened by the enactment of the law of 1857, providing for such record. Now, as heretofore suggested, the sheriff’s certificate does not create a lien, mortgage or assign any interest in real estate, nor does it affect the title to real estate in law or equity, any more than the entry and docket of a judgment, or the filing of a notice of Us pendens. It creates nothing ; it only declares that which already exists, and in the meaning of the recording act it does not affect the legal title. The sheriff's - deed on the sale affects the legal title, and this must be, and in this case it was, recorded.

For these reasons I hold that the exceptions should be overruled and judgment ordered for the defendant on the verdict.  