
    
      Ex parte The Bank of Monroe.
    Lands sold under execution may be redeemed at any hour before the close of the last day allowed for that purpose; business hours not being regarded in this respect. A creditor seeking to redeem must comply fully and strictly with the statute, or he will gain nothing. Per Beardsley, J.
    If the affidavit of the amount due be made by an agent, it should show that he has the means of knowledge, and state the amount positively; not according to his belief merely.
    The affidavit should state in express terms that the deponent is agent for the cred- , itor. Merely naming him as such in the affidavit will not answer.
    Redemption of lands. Perrin, sheriff of the county of Monroe, sold certain lands belonging to Abraham M. Sehermerhorn, by virtue of a judgment and execution against him. The time for creditors to redeem expired on Sunday the 15th of May, 1842; and the Bank of Monroe, one of the creditors, redeemed on the day previous. Between the hours of 11 and 12 o’clock, P. M., of the same day, Blatchford, Graham and Curtiss, assignees of a mortgage given by Sehermerhorn to the North American Trust and Banking Company, applied to redeem; and the only questions in the case were, whether a redemption at that hour of the night was in time, and whether the affidavit to prove the amount due was sufficient. The nature of the affidavit sufficiently appears in the opinion of the court.
    
      F. M. Haight now moved for a mandamus to the sheriff,
    commanding him to execute a deed to the Bank of Monroe.
    
      G. R. J. Bowdoin, contra,
    contended that the deed should be given to Blatchford, Graham and Curtiss.
   By the Court,

Beardsley, J.

The practice has been to permit a redemption to be made at any time before the close of the last day allowed by law for that purpose. Business hours are not, in this respect, regarded. Whatever was done in this case was therefore in season.

It was conceded that the Bank of Monroe duly redeemed, and the whole question comes down to this, whether the .purchase sought to be made by Blatchford, Graham and Curtiss, as •assignees of the mortgage to the North American Trust and Banking Company, was in conformity with the statute. If it was, they are entitled to a deed; but if not, the sheriff must. convey to the Bank of Monroe.

The existence of the mortgage and its assignment are not disputed ; but it is objected that the affidavit furnished to show what remained due on the mortgage was insufficient.

Upon this point no affidavit was made by either of the assignees, the only proof furnished being the affidavit of Tilly Allen. This affidavit was made ón the 11th of May, 1842, prefixed to which is a statement setting forth, among other things, that the amount of principal remaining due on the mortgage was $180,000, and that the balance of interest to the 14th of May, 1842, was $37,066,21, making in the whole the sum of $217,066,21. The deponent is named in the affidavit as agent, but it omits to state expressly that he was such agent. Then follows a clause averring that thestatement prefixed “ exhibits a true and correct account of the amount which will be due upon the said bond and mortgage on the fourteenth day of May instant, over and above all payments, as appears by the books of account of the said trustees, and as this deponent verily believes.”

The affidavit may be made by the mortgage creditor, his assignee or representative, or by his attorney, or agent:” but whether made by the .one or the other, it must state the “ true snm due or to become due,” “ over and above all payments.” (Laws of 1836, p. 793, § 2, subd. 4.)

The present affidavit is defective. It does not appear to have been made by the agent of the assignees. Although the deponent is therein named as agent, this is a mere descriptio persona, and there is no oath to the fact of such agency.

Nor is it shown that the person who made the affidavit had any knowledge of the true sum due or to become due. He only speaks of what appears by the books, but of the correctness of these he does not profess to have any knowledge. True, he swears to his belief that the sum stated is correct, but this is not sufficient for the purpose.

The affidavit should furnish the best and most satisfactory-evidence of what is due. Another creditor may come to redeem, and he.is entitled to correct information on the point.

One who seeks to redeem must comply fully and strictly with the statute, or he gains nothing. This affidavit should have sworn to the fact that the deponent was agent. He should have disclosed his means of knowledge as to the sum due, and the amount should have been stated on such knowledge. One of the assignees has made an affidavit, but he has said nothing as to the amount due and unsatisfied on the mortgage.

I think the assignees failed to effect a legal purchase of the right to these lands, and the Bank of Monroe is consequently entitled to a deed from the sheriff.

Motion granted.  