
    Elmer B. Dixon, Appellant, v. George A. Dixon and Others, Defendants, Impleaded with Mary M. Bickford, Respondent.
    
      Sale of real property under execution — the sheriff’s deed can be given, in case of the purchaser’s death, only to his executor or administrator—effect of a recital that the deed was given pursuant to an order of the court —presumption of redemption where forty years elapse before the sheriff’s deed is obtained,.
    
    April 36, 1855, Casper- J. Schmidt purchased at an execution sale four vacant lots owned by Joseph Dixon, which have since remained in the same condition. Schmidt received from the sheriff a certificate of sale which provided that he would be entitled to a conveyance July 26, 1856, unless the premises should, in the meantime, be redeemed. This certificate of sale was recorded May 1, 1855.
    March 31, 1861, Schmidt died intestate. May 4, 1894, Dixon died intestate. July 28, 1898/the heirs at law of Schmidt assigned their interest in the judgment and the sheriff's certificate of sale to one Bickford and, a few days thereafter, the then sheriff of Westchester county executed and delivered to Bickford a sheriff’s di^ed of the premises.
    
      In an action brought by one of the heirs at law of Dixon to partition the premises and to have the certificate of sale canceled as a cloud upon the title, it appeared that from the time that- the certificate of sale was given in 1855 to the trial of the action, neither Joseph Dixon nor his heirs at law, nor Casper J. Schmidt nor his heirs at law, nor their assignee had been in the actual possession of the premises.
    
      Held, that a judgment dismissing the complaint upon the merits and adjudging that Bickford had the legal title to the premises, was erroneous and should be reversed;
    That the sheriff’s deed to Bickford did not vest in Bickford any title to the premises in question, as, under section 1473 of the Code of Civil Procedure, the sheriff could not execute the deed to any person other than the executor or administrator of Schmidt;
    That a recital in the deed, that it was given in pursuance of an order of the Supreme Court, was not evidence of that fact nor was any such order, until the expiration of twenty years after the recording of the deed, binding upon the-plaintiff who had no notice of the application therefor;
    That, in view of the fact that no application for a sheriff’s deed, pursuant to the certificate of sale, was made until more than forty years after such certificate of "sale was executed, it would be presumed that the judgment debtor had redeemed from the sale and thereby destroyed the validity of the certificate.
    Appeal by the plaintiff, Elmer B. Dixon, from a, judgment of the Supreme Court in favor of the defendant Mary M. Bickford, entered in the office of the clerk of the. county of New York on the 5th day of J une, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint.
    
      James Kearney, for the appellant.
    
      Samuel R. Taylor, for the respondent.
   McLaughlin, J.:

This action was brought for the partition and sale of certain real property formerly situate in Westchester county, now in the borough of the Bronx, New York, and to remove a cloud upon the title.

At the trial the complaint was dismissed upon the merits, and the-respondent Bickford was adjudged to have good title to the premises, in question. From the judgment entered to this effect the plaintiff has appealed. There is no dispute as to the facts. So far as the same are material to the question presented they are substantially as follows : On the 4tli of April, 1853, Joseph Dixon.held the legal title to the premises,..and on that day a judgment was recovered by confession in. the Supreme Court of this State against him in favor of one Casper J. Schmidt for $5,006.75 which was docketed in the county of New York on the ninth of that month and a transcript on the 20th of .January, 1855, filed in the county of Westchester. Execution issued thereon on the eighth of March following to the sheriff of Westchester county in and by which he was directed to satisfy the sum of $401.54, the amount remaining unpaid upon the judgment, out of the judgment debtor’s personal property if a sufficient amount thereof could be found, and if not, then out of his real property.situate in Westchester county. On the 26th of April, 1855, the sheriff in pursuance of a levy made under the execution, sold to one Casper J. Schmidt “ all the right, title and interest of the said defendant Joseph Dixon of which he was seized or possessed on the 9th day of April, 1853, or at any time afterwards,. in and to ” the ■premises and issued to him a certificate of sale in the usual form, which provided that Schmidt would be entitled to a conveyance on the 26th of July, 1856, unless the premises sold should in the meantime be redeemed. The certificate was filed and recorded in the clerk’s office of the county of Westchester on the 1st of May, 1855, and the execution under which the sale had been made and the cer-, tificate issued — satisfied to tlie extent of eiglity-four dollars — was returned to and filed in the office of the clerk of the county of New York on the 26th of April,-1855. On the 21st of March, 1861, Schmidt died intestate, and on the 4th of'May, 1894, Joseph Dixon also died intestate. Subsequently this action was brought by one of the heirs at law of Dixon, all of his other heirs at law being made parties defendant, and Casper J. Schmidt was also named as a defendant, if living, as well as all persons unknown, having or claiming an interest in the real property described in the complaint in this action, such unknown persons or owners being herein designated as the heirs at law, next of kin, devisees, legatees, grantees, assignees and legal representatives of said Casper J. Schmidt, sometimes called or designated Casper I. Schmidt, if any, all of whom and ■whose names, except as stated, are unknown to plaintiff.” The complaint set forth the judgment, levy, sale and issuance of the sheriff’s certificate and alleged certain irregularities in the proceedings which resulted in the sale. Judgment was demanded that the premises be partitioned among the heirs at law of Dixon, and that it also be adjudged and determined that neither 'Schmidt nor any person or persons claiming under him by virtue of the sale or certificate given in pursuance of it had any right, title, interest or estate in the premises described and that such certificate be set aside and canceled. On the 23dof July, 1898, subsequent to the commencement of the action, all the heirs at law of Schmidt for the consideration of $180' assigned all their right, title and interest in and to the judgment and sheriff’s certificate of sale to the respondent Bickford, and a few days thereafter one William Y. Malloy, then sheriff of Westchester county, executed and delivered to her a sheriff’s deed of the premises, which contained, among other things, a recital to the effect that it was given in pursuance of an order of the Supreme Court held in and for the county of Kings on the 3d of August, 1898. After she had obtained the sheriff’s deed she was made a party defendant to the action, and in the answer interposed by her set up the facts upon which her alleged title depended, denied the material allegations of the complaint and asked that the same be dismissed. At the trial the sole question determined was whether the title was in the heirs at-law of Dixon or in the respondent. Bickford., The trial court found that the premises, at the time of the sale under the execution, consisted of four vacant and unimproved lots, which had remained in substantially the same condition ever since. It also found that from the time the certificate of sale was given in 1855, to the trial of the action, neither Joseph Dixon nor his heirs at law on the one side, nor Casper J. Schmidt nor his heirs at law or their assignee on the other, had been in- the actual possession of the lots, from which, and the other facts found, it concluded that the respondent Bickford acquired through the sheriff’s deed the legal title which related back to the certificate of sale, and, therefore, she was presumptively in possession.. It thereupon dismissed the complaint upon the merits and adjudged that siie had the legal title, and from the judgment thereafter entered to this effect the plaintiff, as already said, has appealed.

The conclusion at which we have, arrrivéd renders it unnecessary to consider or pass upon the questions raised as to the validity of the judgment and proceedings taken which resulted in the certificate of sale, because it may be assumed that such proceedings were regular. Nevertheless, under the facts here presented, the deed which the respondent Bickford obtained from the sheriff did not vest in her any title to the premises in question, or divest the plaintiff and the other heirs at law of Joseph Dixon of the legal title which he had at the time of his death, and which descended to them. Under section 1473 of the Code of- Civil Procedure a deed could not be given by the sheriff to any person except the executor or administrator of Schmidt. This section is imperative in form and specifically provides that where a person entitled to a deed dies before its delivery, the sheriff must execute and deliver the deed to his executor or administrator. Schmidt died in 1861. Whether or not he left a will, which was subsequently probated, does not appear, nor does it appear whether letters of administration were ever issued upon his estate. It, however, does appear that no effort was made to comply with this provision of the statute, but that the deed was given by the sheriff direct to an assignee of the heirs at law of Schmidt. This was ineffectual to transfer any interest whatever in the right to demand a deed under the certificate of sale, or to acquire any interest in the land to which it related, and for the obvious reason that the statute specifically provides in such a contingency how the title can be obtained and must be passed. ' To hold otherwise is to work a destruction of the statute by judicial decree. This method of transferring title to real estate is in derogation of the common law. It exists solely by virtue of the statute, and to obtain a valid title the statute must be strictly followed. (Smith v. Colvin, 17 Barb. 157.) It is true the deed contains a recital that it was given in pursuance of an order of the Supreme Court, but such recital is not evidence of the fact, nor is it binding until after the expiration of twenty years after the deed shall have been recorded (Code Civ. Proc. § 1471) upon any person not afforded an opportunity to object to the granting of the same. The plaintiff had no notice of the application for this alleged order, the deed has not been recorded for the time specified in the statute, and, therefore, the recital contained therein is not binding upon him and in no way affects whatever title he has.

But we do not care to rest our decision solely upon this ground. The sale under the execution took place on the 26th of April, 1855. Schmidt became entitled under the certificate of sale to a deed on the 26th of July, 1856. He did not, so far as appears, then demand it nor was any application thereafter made for it for upwards of forty years or until August 4,1898. In the meantime the judgment creditor had died, the judgment had ceased to be a lien upon real estate and by reason of the lapse of time a presumption prevailed that the judgment itself had been paid. The sale was nothing more nor less than a proceeding to enforce the judgment. The certificate given conveyed no interest in the land. It was at most but evidence of steps taken in the proceedings to collect the judgment by enforcing the lien which the statute gave upon the judgment debtor’s land. (Davidson v. Crooks, 45 App. Div. 616.) It is undoubtedly true as a general rule, that a sheriff’s deed, when executed, relates back to the date of the certificate in so far as is necessary to convey all the right, title and interest of the judgment debtor at the time of the docketing of the judgment, but this rule has no application where upwards of forty years have intervened intermediate the giving of the certificate and the deed, the lien in the meantime having ceased on a legal presumption prevailing that the judgment itself has been paid. In such case, in the absence of proof to the contrary, there exists a legal- presumption as strong as the one relating to the payment', of the judgment that the judgment debtor redeemed -from the sale and thereby destroyed the validity of the certificate. This presumption, too, is strengthened when it appears that during such time neither'the purchaser-at the sale nor any persons claiming under him have ever demanded a deed or questioned the title of the judgment debtor in any way. A mortgage on real estate where no interest has been paid and the mortgagee has not entered into possession, is presumed after the lapse of twenty years to have been discharged by payment or otherwise. (Barnard v. Onderdonk, 98 N. Y. 158 ; Collins v. Torry, 7 Johns. 278.) A judgment of a court of record is likewise presumed to have been paid and discharged, in the absence of facts showing tó the contrary, after the same time. (Code Civ. Proc. § 376.) A vendee under a contract of sale of real estate, who has remained in possession for a long time is presumed to have acquired - the legal title. (22 Am. & Eng. Ency. of Law [2d e.d.] 1290.) So grants from the crown where a claimant has held possession for many years (Goodtitle v. Baldwin, 11 East, 488) and from the government of the United States (Oaksmith's Lessee v. Johnston, 92 U. S. 343) are presumed. Like presumptions have been indulged in to sustain the title of one claiming under ah executor or administrator, both as to the actual conveyance by the latter and as to the regularity of the proceedings. (22 Am. & Eng. Ency. of Law, supra.)

Here the judgment recovered by Schmidt in 1853, and which is the only basis for the certificate of sale, having presumptively been paid, we think the same presumption must be indulged in that the judgment debtor redeemed from the sale and thereby destroyed the validity of the certificate. It cannot be that a certificate of sale given by a sheriff has a longer life or greater validity than a judgment of a court of record, or a contract under seal. We think the trial court erred in dismissing the complaint and in holding that the respondent Bickford is the sole owner in fee simple of the land therein described, and for the error thus committed the judgment appealed from must be reversed and a new trial ordered, with costs to appellant to abide the event.

Yah Bruht, P. J., O’Bbieh and Ingraham, JJ., concurred ; Hatch, J., concurred on last ground.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

Note.— The rest of the cases of this term will be found in the next volume, SO App. Div.— [Rep.

\  