
    Craft against Merrill and another.
    A mortgagee, or his assignee, in possession under color of a foreclosure, even though the foreclosure proceedings were a nullity, can maintain an action to remove a cloud from his title against persons who have a paper title, apparently good hut in reality had, and who are strangers to the equity of redemption.
    The plaintiff in such a suit is not hound, as in the case of a party claiming title and seeking to recover possession, to show a perfect title as against all the world, and it is immaterial to the defendants, who are strangers to the mortgagor, whether the equity of redemption he in existence or not.
    Where a note given by a judgment debtor and a surety, for the amount of and as collateral to the judgment, has been put in judgment and collected of the surety, the first judgment becomes thereby extinguished, and no effectual sale on an- execution issued previously to the payment of the second judgment can thereafter be made of the real estate of the judgment debtor.
    The sheriff’s fees, on an execution, are no part of a judgment, hut are merely incident to it, and if the judgment is paid it cannot ho enforced solely to collect such fees.
    
      It seems that in a statutory foreclosure of a mortgage the auctioneer’s affidavit of the fact, of a sale"cannot be taken by the deputy county clerk in the absence of the clerk.
    The action was brought to have certain deeds and a mort ■ gage canceled and removed from the records of Genesee county, as clouds upon the plaintiff’s title to about forty-seven acres of land in said county. The cause was tried by by Mr. Justice Hoyt, at a special term, in Octobei, 1852, without a jury. The following facts appeared up.mi the trial: On the 15th of October, 1842, one Chase was the owner in fee of the premises in question, and on that day mortgaged the same to one Tousley, to secure the payment of $748 one year from date; which mortgage, together with the usual power of sale, was recorded in the proper office, December 20,1842. Some time in 1844, Tousley, the mortgagee, undertook to foreclose the mortgage, by advertisement and sale in pursuance of the statute. From the papers produced on the trial and the parol evidence, it appeared that the premises were sold under the' proceedings on the 27th of February, 1844, and that Tousley, the mortgagee, became the purchaser. He testified upon the trial that he took possession immediately after his purchase, as far as he was able, there being no house upon the premises. In March of the same year Tousley conveyed the premises by deed, with covenant of warranty, to the plaintiff, who took possession and continued to occupy the premises under his deed. On the trial, the plaintiff undertook to establish the foreclosure of the mortgage. All the papers had been filed regularly and recorded, and no objection was made to any of them, except the affidavit of the facts of the sale by the auctioneer. When this was offered, it was objected to.by the defendants, on the ground that it was not taken before an officer authorized by the provisions of the statute, relative to foreclosures, to take and certify such affidavits. On its face it appeared to have been taken before the deputy county clerk, in the absence of the clerk. The justice overruled the objection and received the affidavit, and the defendants’ counsel excepted. The plaintiff also offered parol evidence of the fact of the sale, which was objected to and received, and exceptions taken in like manner. The defendants claimed title in their answer, and the following facts appeared in reference to the title under which they claimed: On the 26th of November, 1841, Hall and Roberts, by Lee and Fauar, their attorneys, recovered a judgment in the supreme court against Chase and one Hill yard, for $76.63, damages and costs, which was regularly docketed in Genesee county. On the 25th of December, 1841, Chase and Hillyard made a note for' the amount of the judgment, and interest up to that time, which was also signed by one Curtis, as their surety, payable in thirty days, with interest. This note was taken by the plaintiffs’ attorneys, and held as collateral security for the payment of the judgment. It was not paid at maturity, and the attorneys of the plaintiffs in the judgment, thereupon, on the 3d of February, 1842, issued an execution to the sheriff of Genesee county, and also to the sheriff of Orleans county. They also commenced an action upon the note against Curtis, the surety, and perfected judgment against him on the 24th of March, 1842. Execution was issued on this judgment to the sheriff of Orleans county on the 24th of April, 1842, on which the sheriff sold the real estate of Curtis September 21, 1842, and which he redeemed on the 1st of September, 1843. The full amount of the judgment was collected by this sale. The execution was returned satisfied September 2d, 1842, and the amount paid to the attorneys of the plaintiffs in the action September 5th, 1843, after the redemption. On the 17th of October, 1843, the sheriff of Genesee county sold the premises in question, together with another parcel of land of about fifty acres, on the execution issued upon the first judgment, and the same were struck off to James D. Merrill for $34.31. It does not appear that the sheriff had any directions on the subject of this sale, except the indorsement on the back of the execution directing him to collect the whole amount of the judgment, with interest from the time it was docketed, and his fees. Merrill, the purchaser, took the sheriff’s certificate of the sale, and a deed from the sheriff, dated January 18, 1845. On the 23d of July, 1846, one of the attorneys of the plaintiffs in the action received of the sheriff $17 in full of the plaintiffs’ costs in the cause. On the 26th of February, 1851, J. D. Merrill mortgaged the premises in question to the defendant, H. W. Merrill, to secure the payment of $508, and on the 13th of August, 1851, he conveyed the premises by quit-claim deed to the other defendant, Alonzo Merrill. This action was commenced in November, 1851. The justice, at special term, found and decided that the first judgment was paid and satisfied when the amount of the last judgment was collected on execution, and that the sheriff of Genesee county, at the time of the sale of the premises in question by him, had no power to make such sale, and that the sale and subsequent deed executed by him were wholly void. It was thereupon adjudged and determined that the sheriff’s deed, the mortgage to the defendant H. W. Merrill, and the deed to the defendant A. Merrill, were all inoperative and void; and that the records thereof be canceled, as clouds upon the plaintiff’s title; and that the plain till', his heirs and assigns, be forever quieted in the title to the said premises and the possession thereof, against the said deed and mortgage. The defendants thereupon appealed to the general term oí the eighth district, where the judgment of the special term was affirmed, and they now appeal to this court.
    
      A. J. Parker, for the appellants.
    
      B. L. Bissac, for the respondent.
   T. A. Johnson, J.

The plaintiff’s proofs of the sale and foreclosure were all complete, except the affidavit of the person who officiated as auctioneer at the sale. That was not taken and certified by one of the officers prescribed by the statute authorizing the foreclosure of mortgages by advertisement, but was taken before the deputy clerk of the county where the papers were recorded, in the absence of the clerk. The deputy has all the powers of the clerk, in the latter’s absence, with certain exceptions, and may properly take any affidavit under such circumstances which the clerk could take himself. The county clerk is authorized by statute to take any oath or affidavit that is or may be required by law, except, amongst other things, “such other oaths as are required by law to be taken before particular officers.” (2 R. S., 284, § 49.)

I do not deem it material, however, for the court in this case to decide whether the proceedings to foreclose the equity of redemption óf the mortgagor were valid or otherwise, because, whether they were or were not, the defendants’ title is not affected* by them, inasmuch as the judgment under which they purchased was older than the mortgage, and was not affected by it. If that judgment was a valid subsisting lieu at the time of the sheriff's sale, the defendants’ title is superior to any which could be obtained under or through the mortgage.

The plaintiff is in possession under a deed of warranty from the mortgagee, and it must be admitted that he has the title as against the mortgagee and his heirs, and all pea-sons claiming under the mortgagor subsequent to such mortgage; subject, however, to be defeated by the payment and satisfaction of the mortgage, by some one having the equity of redemption, in case the sale and foreclosure should be held to be incomplete and of no avail as a foreclosure. (Van Duyne v. Thayer, 14 Wend., 233; Phyfe v. Riley, 15 id., 248; Astor v. Hoyt, 5 id., 617; Jackson v. Bowen, 7 Cow., 13.)

It is claimed, on the part of the defendants, that before the plaintiff can maintain this action he must show a’com-* píete and perfect title to the premises, which is subject to no impeachment or defeasance from any quarter. No authority is cited to sustain this position, and I am not aware that any such rule has ever been applied to a case of this kind. It applies where a party claims title, and is seeking to recover possession. There, he must recover, if at all, on the strength of his own title; but here, the plaintiff is in possession under a title or claim of title, and it seems but reasonable that he should be permitted to • defend it, and to quiet it against the claims of all persons who are strangers to the equity of redemption which it is alleged is still in existence, unaffected by the foreclosure proceedings.

Conceding, therefore, for the purposes of this case, that the plaintiff’s title is in no respect aided or strengthened by the attempt to foreclose, still, I am of opinion that this action may be maintained by the plaintiff against the defendants, if the sheriff’s deed, under which they claim, was void. This depends upon the question whether the judgment, on which the execution in the sheriff’s hands "was issued, was paid at the time of the sale by the sheriff. The judgment was the sole foundation of the sheriff’s power to sell and convey the premises, and if the judgment was paid when he undertook to sell and convey, his power was at an end, and all his acts were without authority and void. The purchaser under a power is chargeable with notice, if the power docs not exist, and purchases at his peril. The-justice before whom the cause was tried at the circuit, without a jury, found as matter of fact that, prior to the day on which the sheriff sold the premises, the judgment had been fully paid and satisfied. Admitting, however, that the question of the payment of the judgment is a question of law, upon the undisputed facts of the case, it was, I think, properly determined at the circuit. The note which was taken as collateral security to the judgment was for the full amount of the judgment, damages and costs, and, of course, is to be presumed to have included the usual prospective costs of the attorney. This note was prosecuted to judgment, and the judgment upon it collected by execution before the sheriff’s sale under whieh the defendants claim. Nothing can be clearer, I apprehend, than that this operated as a payment and satisfaction of the principal debt, both in fact and in law, in whatever form it existed.

It is claimed by the defendants’ counsel that additional attorneys’ fees and costs had been made by-the issuing of the execution upon the first judgment, and that the sheriff had become entitled to fees, and that a sale might lawfully be made to collect such costs and fees even if the judgment was paid. The execution was issued after the note as col lateral security was taken, and before the judgment on such note had been collected. There is nothing in the evidence however, to show that the sale was made for the purpose of collecting the attorneys’ or sheriff’s fees. All that is made to appear on that subject is the direction to the sheriff indorsed" upon the execution, by which he is directed to levy the whole amount of the judgment, with interest, and his fees'; and that the premises in question and another parcel of real estate were struck off to James D. Merrill, the highest bidder, for $34.31. Of this sum it appears that the sheriff paid to one of the plaintiff’s attorneys $17, in full of the plaintiff’s costs in the action. These costs, it is very clear, were included in the note, and had been collected when the judgment upon such note was- enforced. As to the sheriff’s fees they are - no part of the judgment, and if the judgment is paid it cannot be enforced merely to collect such fees. They became a charge in favor of the sheriff against the party in whose favor the execution is issued, or bis attorney, unless, indeed, they are insolvent, and there has been collusion between them and the defendant to deprive 'the sheriff of his fees. This was held in Jackson v. Anderson (4 Wend., 474). In no case can an execution be used to collect extra or additional attorneys’ fees, which are not included in the judgment. It follows that the sheriff’s sale was wholly without, authority, and his deed a nullity, and that the defendants have no valid title or claim to the premises. In this view of the case the error in admitting the affidavit of the auctioneer and the parol evidence of the sale is of no consequence, as it could by no possibility have prejudiced the defendants.

The judgment of the supreme court should therefore be affirmed.

Denio, C. J.

The payment of the amount of the recovery against Chase and Hillyard, with the interest, and the receipt of that amount by the attorneys for tire plaintiff in the judgment, without any objection on account of sheriff’s fees being unpaid, was an extinguishment of the judgment, and no effectual sale of the real estate of the judgment debtors on the execution could thereafter be made. (Wood v. Colvin, 2 Hill, 566, and, cases cited.) The defendants’ counsel maintains that the sheriff had a right to sell for his fees. It is said that he- had made a levy and had incurred expenses in advertising before the payment was made; but the fees of the sheriff are no part of the judgment, but only an incident to it. The authority to sell is the judgment, and when that is discharged the power ceases. It was "said on 'the argument that in this way the judgment debtor who had resisted payment until the levy of an execution might get rid of a part of the legal expenses which his default had rendered necessary; but the plaintiff or his attorney has only to refuse the payment offered until the expenses are also paid, and then the remedy for these expenses will not be lost. In this case, the note was given for the precise amount of the recovery and the interest; and when paid or collected it satisfied the judgment. The principle is somewhat analogous to the rule that interest, which would otherwise be recoverable as damages, cannot be claimed after receiving the principal, without objection. (Fake v. Eddy’s Executor, 15 Wend., 76, and cases cited by the chancellor.)

Assuming, then, that the sale was without authority and void, a suitable case was presented for a judgment establishing the plaintiff’s rights in respect to the title claimed to be derived under the sale, provided the plaintiff was in other respects so situated as to entitle him to this remedy. It must be assumed that the foreclosure proceeding under which he claimed was ineffectual. It was conceded on the trial, and on the argument before us, that the deputy cleric was not authorized to take the affidavit of the auctioneer who conducted the sale on the mortgage. It was settled, in Arnot v. McClure (4 Denio, 41), that the affidavits mentioned in the statute are essential to a foreclosure, where the mortgagee is the purchaser; that where there is no conveyance under the foreclosure, the affidavits must be made, or the attempt to purchase is a nullity.

The single question then remains, whether the plaintiff, being in possession under color of a foreclosure, and having a conveyance from the mortgagee with a covenant ' of warranty, can sustain a suit like the present against a party having a paper title apparently good, but having, in fact, no right whatever. I am of opinion that he can. The object of the action is not to vindicate the plaintiff’s right against the mortgagor, or his heirs or grantees. The facts being shown, it is clear the defendants are not connected with the mortgagor. They derived no right from or under him, but are strangers to him and his title. They claim to be the owners of the land; but that claim is with out foundation, and the assertion of it is a wrong which operates to the prejudice of the plaintiff, whether he has a perfect title or is only a mortgagee in possession. It seems to me to be no answer to say that there are other parties who can successfuly contest the plaintiff’s title. It may be that such parties will acquiesce, as they have hitherto done; whether they do or not is a matter of no interest to the defendants. It is immaterial to them whether the mortgage has been foreclosed or not. In neither event have they any claim to the land. The plaintiff has all the rights which Tousley the mortgagee had, and is in possession. He has a good title against all the world, except the mortgagor and his representatives; and as against them, the mortgage being forfeited, he has a right to the possession until the mortgage debt is paid. If his title is liable to be redeemed by the representatives of the mortgagor, it is not subject to challenge by the defendants.

I think, -therefore, that the supreme court was right in the judgment it has given, and that judgment should be affirmed.

All the judges concurred.

Judgment affirmed.  