Opinion
Argued February 6, 1877
Decided February 20, 1877
A.J. Vanderpoel for the appellant.
Geo. W. Niles for the respondent.
There is great force in the position of the counsel for the appellant that, under the peculiar and exceptional circumstances presented, the relator ought not to be concluded by the adjudications in the Special and General Terms in the proceedings against James Lynch, the sheriff, for a mandamus to compel the latter to give a deed to Lee. The relator was not a party to that proceeding, and was denied the right to appeal to this court upon that ground, and also upon the ground that his interests could be protected through the sheriff, who had appealed to this court. The sheriff died during the pendency of the proceeding in this court, and the application by the relator to revive the proceeding, was denied upon the ground that there was no apparent authority to substitute any one. If this decision was right the proceeding abated before final adjudication, and it would be a harsh measure of justice to prevent the relator from availing himself of the remedy to which he was originally entitled of prosecuting a proceeding in his own name. As a general rule a person is not estopped by a judgment to which he is not a party, and although there are exceptions to the rule I do not think they include a case like this where the party has been deprived of the benefit of a final adjudication because he was not a party, and finally by the abatement of the proceeding without the right of revivor by the death of the party to the record through whom alone his interests could be protected. As this was the ground upon which the decision below was based, we felt inclined to reverse that decision, and thus give the relator a status which would enable him to contest in court the title to the premises which he claims under his redemption. But upon examination there is a defect in the redemption under which he claims, which we find ourselves unable to overcome, and that is that the redemption was not made to the officer who made the sale. James Lynch was the sheriff, and the sale was made by John Lynch, a general deputy; and, as I understand, it is conceded that both were in the sheriff's office when the redemption was made. The act of 1847 (chap. 40, § 3), provides that "all redemptions which shall hereafter be made on or after the last day of the fifteen months by any creditor * * * shall be made at the sheriff's office of the county in which the sale took place, and it shall be the duty of the officer making such sale to attend at said office during the last day * * * and in the absence of the officer who made the sale from the sheriff's office at such time, then such redemption may be made to the sheriff, and in his absence to the under sheriff, or any deputy present at such office," etc.
The purpose of this statute was to make two things certain — the place where, and the person to whom redemptions are to be made on or after the last day of the fifteen months. Creditors must then act promptly, and it was doubtless deemed important in order to prevent mistakes, collusion or fraud, to insure certainty in these respects. Successive creditors, desiring to redeem, would know where to go, and to whom to apply for information in respect to what had been done by other creditors, to the end that the rights of all might be fairly protected. The statute requires the officer making the sale to attend at the sheriff's office on that day, and the presumption is that this duty will in general be performed, but in case of his absence the statute particularly specifies other officers in succession to whom the redemption may be made, but the implication is irresistible that only in the absence of the officer who made the sale can redemption be made to the sheriff.
The learned counsel for the relator urged upon the argument that the words in the act "the officer making such sale" should be construed in case of a sale by a deputy, to include both sheriff and deputy, and hence that a redemption to either would be good, and that the latter clause of the act providing that in the absence of such officer the redemption might be made to the sheriff, and in case of his absence to the under sheriff, or any deputy present, should be construed to apply to the sheriff, etc., then in office, as the successor of the sheriff making the sale, "to prevent a lapse of the right to redeem by absence of the proper officer." To the first branch of the position the case of The People v. Baker (20 Wend., 602) was cited, which arose under the Revised Statutes, which provided, in general terms, that payment might be made to the creditor or purchaser, or to the officer who made the sale. It was held (NELSON, J., delivering the opinion) that payment might be made to the sheriff or deputy who sold the premises. He said: "Both made the sale, one in fact, and the other in judgment of law."
The statute of 1847, above quoted, was designed, as before stated, to render certain the person to whom redemption might be made, and I think it clearly recognizes the deputy when he made the sale as the officer making the sale, by distinguishing him from the sheriff.
I see no way to escape the force of the language in this respect. The officer who made the sale is to attend. This means the officer who in fact made the sale, and is confined to one person. If he is absent, then redemption is to be made to the sheriff, indicating, manifestly, that the sheriff was regarded as a different officer from a deputy who actually made the sale. There is not a word in the statute indicating the construction claimed, that the sheriff specified was intended to mean the successor of the sheriff in office when the sale was made, and it will not do to invent a construction against the plain import of the words, nor to interpolate words to reach a construction not warranted by the words employed, especially when the language employed has a practical application, and does not lead to an absurd result. A deputy sheriff is an officer recognized by statute, and may perform nearly all the duties of sheriff. He can execute deeds of land sold by him during or after the expiration of the term of his principal. (10 J.R., 223; 18 id., 7; 7 Cow., 739; 6 Wend., 213; 3 Cow., 89.) He is an officer coeval in point of antiquity with the sheriff. (2 J.R., 63.) By statute sheriffs are authorized to complete the execution of all final process after their terms expire, which they shall have begun to execute, by collection of money, or making a levy (3 R.S., 738, § 92), and this applies, of course, to sales of lands made on execution and receiving redemption and executing deeds thereon. (20 Wend., 602.)
These views are in accordance, I think, with the understanding of the profession and the courts. WRIGHT, J., in delivering the opinion in Gilchrist v. Comfort ( 34 N.Y., 242), said: "Its fair reading is, that if the officer (under-sheriff or deputy) who made the sale is present at the office, although the sheriff be also present, the redemption is to be made to the officer who made the sale." It is true that this was not the point involved in that case, but the observation was made in support of the construction adopted upon the point involved, which was the place where the redemption required to be made, and it is significant of the understanding of the court in respect to the point now under consideration. It was claimed on the argument, that this court, in Livingston v. Arnoux ( 56 N.Y. 507), had decided adversely to the construction in Gilchrist v. Comfort ( supra), above quoted, but this is a mistake. There, it is true, the deputy made the sale, and the redemption was to the sheriff, but the redemption was not by a creditor but by the debtor within a year after the sale, and hence the act of 1847 did not apply. The point involved here was not and could not be made, and was not decided. The statute of 1847 was not involved and is not referred to in the opinion. It was a question of payment under the Revised Statutes.
After a careful examination and against my first impression, I am of the opinion that the redemption by the relator was not made to the right officer, and is therefore invalid.
The order must be affirmed.
All concur; RAPALLO, ANDREWS and MILLER, JJ., concurred in result.
Order affirmed.