People ex rel. Collier v. Sheriff of Broome

19 Wend. 87

• Court: New York Supreme Court
• Decided: January 15, 1838
• Status: Published

Opinion

By the Court,

Nelson, Ch. J.

The judgment debtor has ope year to redeem from the time of sale, 2 R. S. 370, § 45, which expired on the 18th July, 1836, inclusive ; and in case of his omission to do so, then any junior judgment creditor may redeem “ within three months after the expiration of such year.” If we count the nineteenth day of July, 1836, as we should do, the three months, commencing the beginning of that day, will expire on the eighteenth day of October following. The rule of computation of time in respect to notices, or where an act is to be done, in which we usually exclude the first and include the last day, does not apply, as here there can be no fraction of the nineteenth day of October to be disregarded, as the whole of it necessarily comes within the three months, by the statute commencing on the expiration of the year, which is the last moment of the eighteenth day of October. This principle of construction, I understand, has been ádopted in the court for the correction of errors in an analogous case. But even without the- application of it here, there are several other sections in respect to the process of redemption, which clearly indicate that the legislature intended to allow only the fifteen months, and which, in this case, expire on the eighteenth of October. 2 R. S. 371, 373, § 51, 61, 62.

Notwithstanding, however, that the redemption under the mortgage on the ninteentk of October was too late, there exists a decisive answer to the motion of the relator. The remedy by mandamus is one of strict legal right, and the relator must therefore show affirmatively a legal claim or title to the deed, in order to put the sheriff in default. That he has not done, because “ to entitle any creditor to acquire the title of the original purchaser, &c. he must present and leave with such purchaser, creditor, or officer who 'made the sale, the following evidence: A copy of the docket of the judgment, &c. duly certified by the clerk of the court.” 2 R. S. 373, § 60. The old statute made no provision as to proof of the existence of the judgment, but this court, 1 Cowen, 443, decided that an exemplification, or certificate of the clerk, would be sufficient for the sheriff. The revised statutes have now prescribed the proof, which is directory to the officer; and which we are of opinion he clearly is not bound, if he is at liberty to waive. The same chapter had already specified the matter to be contained in the docket, and confined the lien of the judgment from the time of the entry of it. 2 R. S. 361, § 13. The copy of the docket will show the actual amount of the lien (the docket in this respect controlling the record) and also satisfaction in whole or in part, as the case may be, if entered of record. Id. 362, § 22, 26, 27. We are inclined to think the statute should be construed as peremptory in its direction to the officer ; not to be departed from, not only for the above reasons, but to preclude the possibility of favoritism, which might otherwise be indulged to the prejudice of the rights of the redeeming creditors, by giving to the officer a discretion as to the nature or sufficiency of the evidence.

The above disposes of the whole case, and it is, therefore, unimportant to notice other points raised on the argument.

The motion must therefore be denied with costs.