
    Smith v. Miller.
    The sheriff holding an execution against H., M. paid him the amount thereof, in the expectation that the plaintiff in the execution would assign him the judgment, but without the plaintiff’s knowledge or any negotiation with him, and'the money was not to be returned if the plaintiff should refuse to assign. The sheriff gave M. a receipt, stating that the money was “to apply on the judgment, which*is not to be canceled except by M.’s order, if the plaintiff will assign the judgment,” which, after a time, he did: Held, that this was a purchase, and not a payment, of the judgment.
    
      It seems, that an attempted redemption by a judgment-creditor is void, if his affidavit overstates the amount due on the judgment, though the misstatement be casual, and not fraudulent.
    Appeal from the Superior Court of the city of Buffalo. The action was brought to restrain the sheriff of Brie from executing a deed to one Miller, upon his alleged redemption of the land of Milo W. Hill, which had been sold on execution, on the ground that the judgment on which Miller claimed to redeem had been previously satisfied. The complaint also prayed that the sheriff be required to execute a deed to the plaintiff,: who claimed to have acquired a right to such deed, in virtue of his redemption under a judgment assigned to him by Lovell and Coles, the plaintiffs therein. The trial was before the court without jury. The plaintiffs’ title to the Lovell and Coles judgment was proved to have been obtained in this way: Lovell and Coles, having obtained judgment against one Hill, took from him two notes for the amount thereof, payable two and four months from date, both indorsed by the plaintiff, and stated, in their receipt for the notes, that “ when paid they aré to apply on the judgment.” At the time the arrangement was made, it was agreed that if the plaintiff had to pay the notes the judgment should be assigned to him. Hill paid the first note: the plaintiff was charged as indorser upon the second note; paid it, and Lovell and Coles assigned to him the judgment. In the affidavit made when the plaintiff claimed to have redeemed, he stated the sum due to him upon the judgment as the whole amqunt, whereas, in fact,, it was but half that amount. The judge found, as matter of fact, that this misstatement was casual and not fraudulent.
    The right of the defendant Miller to redeem arose in this way: Carter, Quinan & Deforest had recovered judgment against Hill, and an execution thereon was in the hands of the sheriff. Miller paid the amount due thereon to the sheriff, the judge found, as matter of fact, “in the hope and expectation that the plaintiffs therein would assign the judgment to him, but the money was not to be returned to Miller, if Carter, Quinan & Deforest, the plaintiffs in that judgment, refused to assign it. At and prior to the time of payment, nothing had been said to Carter, Quinan & Deforest about assigning the judgment.” Upon receiving the money, the sheriff signed and delivered to the defendant Miller a paper in these words:
    “ Received, Buffalo, Sept. 1,1855, of L. A. Miller, $1,067.77, to apply on judgment of Carter, Quinan & Deforest against Milo W. Hill,"said judgment to be under the control of said Miller, and not to be canceled except by his order, if plaintiffs will consent to and make an assignment of said judgment to said Miller.”
    Upon paying over the money to the plaintiffs’ attorney in the execution, the sheriff informed him that Miller wanted an assignment of the judgment. The attorney replied that he had no authority to assign it, but would correspond with the plaintiffs on the subject. They subsequently assigned the judgment to Miller. The judge held that the payment of the money by Miller to the sheriff extinguished the judgment, and upon his order the plaintiff had judgment that the sheriff convey the land in question to him. Upon appeal, the court at general term reversed the judgment, and the plaintiff appealed to this court, stipulating for judgment absolute against him, if the order for a new trial should be affirmed.
    
      Amasa J. Parker, for the appellant.
    
      John Ganson, for the respondent.
   Gould, J.

The true construction of the receipt, given by the sheriff to Miller, on receiving from him the amount due on- the judgment of Carter and others, is matter of law and not of fact. And it does not admit of'question (without adding any words to it), that notwithstanding it says the money was “to apply on” the judgment; yet the words, “said judgment to be under the control of said Miller, and not to be canceled except by his order, if plaintiffs consent to and make an assignment of such judgment to said Miller,” show that the payment was intended as a purchase of the judgment, if the plaintiffs would consent to sell.

The plaintiffs subsequently ratified the act of the sheriff in .receiving the money as their agent, and not in payment of the judgment, by assigning the judgment. And there can be no doubt that the assignment was effective as such; that the judgment never was paid, but was purchased. Of course, the purchaser, Miller, so holding it, was entitled to redeem, and he did so. He must prevail.

Judgment of general term (reversing1 special term) should be affirmed, and judgment final rendered against the plaintiff, on the stipulation.

Davies, J.

If the Carter judgment continued a lien upon the lands of Hill after the 1st of September, 1855, then, it must be conceded, the plaintiff’s redemption was ineffectual, and he was not entitled to the relief asked for. It is undeniable that Miller never intended to discharge and satisfy that judgment. The money paid to the sheriff was his money, and he did not, in terms, pay it to satisfy the judgment. Are we to assume that the judgment became extinguished and discharged by a payment made under the circumstances disclosed in the receipt and the testimony of the sheriff? The sheriff says, Miller wanted an assignment of the judgment; that he so informed the attorney for the plaintiffs, who gave him the assurance that, if they had no objection, the assignment would be executed. The money was therefore paid over, with the expectation that the judgment would be assigned to Miller, and was received by the firm of Carter and others with full knowledge of this expectation, and that the money was paid for that purpose. ' They recognized this understanding by subsequently executing the assignment. There could have been no intention on the part of Miller of satisfying the judgment, and it is clear that the acts of the parties negative any such assumption. But it seems to me that the language of' the receipt is conclusive to show that the money was not paid to satisfy the judgment, but for- an assignment of it. It is inartificially drawn, and does not express connectedly what was obviously the understanding at the time, but its true meaning can be easily extracted. The money paid was to “apply on” the judgment of Carter and others, the same.expression as used in the receipt given for the notes of Hill to liquidate the Lovell and Coles judgment. These notes, when paid, were “ to apply on the judgment,” and the judgment was to remain in force until they were paid. An argument might, therefore, with equal propriety, be drawn, that when the notes were paid, the Lovell and Coles judgment was no longer to have any force, and if the judgment was satisfied in the one instance, it was in the other. But further language is used, even more emphatic: “ Said judgment to be under the control of said Miller, and not to be canceled except by his order.”

There is an express stipulation that the -judgment is to remain, and continue to be thereafter, under the control of Miller. This is in hostility with the idea that the judgment was satisfied by the payment of the money to the sheriff. Again, it is expressly stipulated that the judgment shall not be canceled, except by the order of Miller. He thus insured his own security, by the agreement that the judgment was to remain uncanceled, except by his direction. How it is argued that Carter and others were not bound by these stipulations, and they were under no obligations to confirm them. That may be true, but they did confirm them, by accepting the money and executing the assignment; and these acts of theirs are equivalent to an original authority, conferred by them on the sheriff to make this arrangement. It was, no doubt, as competent for them to agree to accept Miller’s money, to apply on their judgment against Hill, and to stipulate that thereafter it should be under his control, and should not be canceled, except by his direction, as it was for the plaintiff in the Lovell and Coles judgment to accept Hill’s notes, to apply on that judgment; and the judgment in the one case was no more canceled than it was in the other. It was the intention of the parties, in both instances, that he who paid the money should have the benefit of the judgment and the lien created by it, for his reimbursement. It is equitable that this should be done, and it is not clear that, if Carter and his co-plaintiff had refused to execute the assignment, a court of equity would not have compelled them to do so, or to return to Miller the money he paid in the expectation that the judgment would be assigned to him. The last clause of the receipt is that in which the obscurity is found: “If plaintiffs will consent to and make an assignment of said judgment to said Miller.” I think the sheriff intended! by this tp avoid any engagement, on his part, that the plaintiffs should make the assignment, but that the receipt was intended to read, and should read, if the plaintiffs consent to and make an assignment of said judgment to said Miller, said judgment is1 to be under his control, and not to be canceled except by his order. As before remarked, the receipt of the money and the execution of the assignment by Carter and others are be deemed, in my opinion, evidences of ratification of the acts of the sheriff, and are as binding upon them as if made by themselves originally. They do not repudiate the acts of their agent. On the contrary, they have ratified and confirmed them. I do not see how this plaintiff can maintain that the judgment was canceled and satisfied by the payment to the sheriff, when the party making it, the one receiving it, and the parties for whose benefit it was made, have expressly stipulated and agreed to the contrary. It follows, from these views, that the redemption of the plaintiff was avoided by the subsequent redemption of Miller, under the Carter judgment, which was then a lien on the premises and in full force.

I have not deemed it necessary to discuss the other point, whether the redemption of the plaintiff was in fact according to law. The statute applicable to this subject (2 R. S., p. 373, § 60, sub. 3), requires an affidavit by the creditor, of the true sum due on such judgment at the time of claiming such right to redeem. A literal. construction of this section of the star tute would show' beyond all controversy that the affidavit made by this plaintiff did not conform to its. requirement in this essential particular. It did not state the true amount due to the creditor making the redemption, but stated what was nearly double the amount due thereon. The plaintiff had paid only one of the notes for $1,557, as the consideration for the assignment of the judgment, and which, with the interest thereon, was all that was due on the judgment. The amount of principal was incorrectly stated in the affidavit, as also the interest due thereon. I do not see how this express mandate of the statute can be evaded, and it is important that it should be adhered to. A junior judgment creditor, coming forward to redeem, as in the present case, might have been deterred from making the redemption by seeing the large sum erroneously claimed to be due the plaintiff, or if he determined, notwithstanding, to redeem,- he would have been compelled to pay the amount stated in the affidavit, while the' true sum was nearly half less. These' considerations, undoubtedly, influenced the legislature in requiring the true amount due each redeeming creditor to be stated in the affidavit made by him. And I do not see upon what ground we are at liberty to depart from the plain language of the statute. If it were necessary to the decision of this case that we should pass upon this question, I am, as at present advised, inclined to the opinion that the affidavit was, in this respect, fatally defective; but, as the case can be disposed of on the other ground, I do not purpose definitely to pass an opinion on this question.

The order of the general term, granting a new trial, should he affirmed, and, in accordance with the plaintiff’s stipulation, there should be judgment final for the defendants.

Denio, Ch. J., did not sit in the case; all the other judges concurring,

Ordered accordingly.  