
    
      Ex parte Paddock.
    A person under whose execution lands have been sold is not authorized to redeem in virtue of the judgment on which the execution issued either from tire purchaser or a creditor; and this, though no part of tire proceeds of the sale were realized upon his execution, but were wholly exhausted by other and prior executions under which the property was sold at the same time.
    Redemption of lands. On the 30th of December, 1840, two lots of land belonging to W. & M. R. Prince were sold by the sheriff of Queens county on six writs of jd. fa.. The lots were sold separately, and were both bid off by Peck and two others. On payment of the purchase money the sheriff executed a certificate of sale in the usual form, describing the executions on which the lots were sold as follows : Four in favor of the New-York Dry Dock Company against W, & M, R. Prince, tested in May, 1839, u being the oldest and first in hand”—one in favor of the Hartford and New-Haven Rail Road Company, against the same defendants, tested in July, 1839, and one in favor of the Branch Bank of the state of Alabama, against the same defendants, tested November 4th, 1839. The lands were sold for a sum less than the amount of the judgments in favor of the Dry Dock company. On the 15th of November, 1839, Paddock obtained a judgment against the same defendants, and, on the 30th of March, 1842, the land not having been redeemed within a year from the sale, he paid to the sheriff the amount of the purchase money received by him from Peck arid others, with interest, and claimed to be entitled to a deed of the land. The judgment in favor of the Hartford and New-Haven Rail Road Company, which was recovered in July, 1839, was assigned to Peck and others (the purchasers) before the month of October, 1840 • and, on the same day that Paddock made the aforesaid payment to the sheriff, Peck and others, as such assignees, refunded the same, and insisted that the sheriff was bound to execute to them a deed of the lands sold by him in virtue of the said executions. The sheriff declined executing a deed to either Paddock or the purchasers, being in doubt as to who was entitled thereto. This motion was therefore made, in behalf of Paddock, for a mandamus to compel the sheriff to execute a deed to him.
    
      Edtnonds Sf Buckham, for the motion.
    
      C. V. S. Kane, contra.
   By the Court,

Nelson, Ch. J.

As the judgment of which Peck and others are assignees is older than the one in favor of Paddock, the former would be entitled to a deed from the sheriff were it not that their execution is one of those under which the sale was made. The statute provides, that “the plaintiff under whose execution any real estate shall have been sold, shall not be authorized to acquire the title of the original purchaser, or of any creditor, to the premises so sold by virtue of the decree or judgment on which such execution issued.” (2 R. S. 373, § 58.) It is insisted in behalf of the assignees of the judgment, that their right to a deed is not affected by the statute, inasmuch as no part of the purchase money was applied on their judgment. But the statute is explicit, and contains no exception in favor of such a case. In order to have secured the payment of the judgment, the purchasers should have bid more for the land ; or, if they had desired a deed from the sheriff, they should have withdrawn their execution before the sale, and thus put themselves in a situation to demand the deed on refunding the purchase money paid by a junior judgment creditor.

Motion granted.  