Welles, J.
It was contended on the argument, by the counsel for the defendant, that the sheriff could not look beyond the papers before him, and that it was manifest to him from those papers, and the conduct and claims of the parties on the 26th of December, 1846, that McAlister had acquired by virtue of the mortgage of the 12th of October, 1844, all the right of McAlister & Moulthrop, the original purchasers at the sheriff’s sale.
Without taking time to consider how the case would stand, or which of the real parties litigant would have the advantage, upon the facts thus regarded, I think all the matters contained in the return which legally affect the questions to be decided are now before the court, and should be taken into consideration. The defendant is not at liberty to controvert any of them, and it was competent for the relator to have traversed the return, or any material part of it, by plea. Or he might have demurred to the return, and then the cause would have gone upon the calendar for the general term, and been heard as an enumerated motion. He had his election between that course, and bringing on the case as a non-enumerated motion, founded upon the return, unless the court should specially direct formal pleadings tó be interposed. (The People, ex rel. Bentley, v. Comm'rs &c. of Hudson, 6 Wend. 559. See also 16 John. 65.) I shall, therefore, consider the case the same as if it came up on a general demurrer to the return.
The first question is, whether the relator acquired “ all the rights of the original purchaser,” at the sale of the premises in [385]*385question, by the defendant, as sheriff of Orleans county. On the 26th of December, 1846, the day before the expiration of the fifteen months from the time of the sale, he paid the defendant $172, being the amount bid at the sheriff’s sale with interest at seven per cent; and at the same time presented to, and left with the defendant, a copy of the docket of the Swan judgment duly certified by the clerk of the court in which it was docketed, a copy of the assignment of such judgment by the plaintiffs to the relator, verified by his affidavit, and an affidavit stating the true sum then due on the judgment to be $125,98. This was prima facie a compliance with the statute. (2 R. S. 373, § 60.) But it is objected that the relator had no right to redeem the premises; for the reason that the Swan judgment was extinguished by payment to the defendant, who, as sheriff, held an execution which had been issued upon it, at the very moment the relator was attempting to use it for the purpose of acquiring the rights of the original purchaser, and after the relator had paid the $172, to the defendant, as before stated. This payment was made by McAlister, who at the same time directed the defendant to pay back to the relator the $172, which he had just paid to the defendant; which sum, together with the $124,98 due upon the Swan judgment, was tendered by the defendant to the relator, and by him refused. The last sum had been tendered by McAlister to the relator, and in like manner refused before the latter paid the $172 to the defendant, or did any thing towards redeeming the premises. So far as these transactions are to be regarded in the light of a tender, they form no obstacle to the relator’s acquiring the right of the purchaser at the sheriff’s sale. A tender upon a judgment, if not accepted, does not operate as an extinguishment of the lien. This was held in Jackson v. Law & Nelson, (5 Cowen, 248,) and in Ex parte The Peru Iron Company, (7 Id. 540,) .
Nor was it, in my opinion, a payment, so as to operate as an extinguishment of the judgment. 1. It was too late. The relator had paid the $172 to the defendant, and while he was in the act of presenting the papers required by the statute to be [386]*386presented to, and left with the sheriff; the payment was made to the sheriff. The relator’s right to be regarded as a judgment creditor, and as having in that character acquired the purchaser’s interest in the premises, was so far, if not absolutely vested, as to place it beyond the power of McAlister to defeat that right, by paying his judgment, against his will. 2. I think also, the defendant had no right to accept the money of McAlister, as a payment of the Swan judgment. The relator had just before refused it, when tendered by McAlister. It was but a repetition of the effort just made by McAlister, to extinguish the lien of this judgment; and I think the relator had a right to disregard it, as interfering with his right to redeem. The defendant, so far as respected the execution upon the judgment, was the relator’s agent, and was bound to follow his directions when the same were not contrary to law. If the relator was not bound to take the money from McAlister, the sheriff had no right to do it for.him, without his consent. 3. McAlister had no right to pay the execution on this judgment, and thereby extinguish it.'- He was a stranger in respect to this judgment and execution. Laying out of view his agreement with Swan, at the master’s sale, and the mortgage against Henderson of 12th of October, 1844, he had no more to do with the matter than any other stranger. He, with Moulthrop, had purchased the premises at the sheriff’s sale, but that created no privity either with Henderson or the land, except that if the land should not be redeemed in fifteen months, he and Moulthrop would be entitled to a conveyance; and if it should be, then they would be entitled to their money and interest. (Phyfe v. Riley, 15 Wend. 248. Clow v. Borst & Best, 6 John. 37.) 4. It is urged, however, that the judgment in favor of Swan was provided for in the agreement made between him and McAlister at the master’s sale, in pursuance of which, the latter bid for the second parcel of the premises a sum sufficient to satisfy both the decree and this judgment; and that the relator took the assignment from Swan, subject to all equities existing in relation to it. To this it is answered that the agreement was void under the statute of frauds.
[387]*387The statute, (2 R. S. 136, § 3,) is as follows: “ Every contract for the sale of any goods, chattels or things in action, for the price of fifty dollars, or more, shall be void, unless, 1. A note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby: or, 2. Unless the buyer shall accept and receive a part of such goods, or the evidences, or some of them, of such things in action; or, 3. Unless the buyer shall at the time pay some part of the purchase money.” In this case, the contract on the part of Swan was to “ dispose of the judgment, and take no other measures about it." That the agreement was directly within the statute, cannot admit of a doubt. It was a parol executory agreement for the sale of a chose, or thing in action, for over $50, no part of the evidences thereof being accepted or received by the buyer, and no part of the purchase money paid.
The defendant contends that the hen of the Swan judgment was destroyed by the decree in the foreclosure suit, in which the Swans were made parties. I do not think the decree has that effect. 1. All the defendants in the foreclosure suit, except Henderson, were made parties, as having liens subsequent to the mortgage, and Swan’s judgment was prior to the mortgage. 2. When the suit was commenced, McAlister was the owner of this judgment, by assignment, and before the decree was entered, he reassigned it to the Swans.
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Welles, J.
It was contended on the argument, by the counsel for the defendant, that the sheriff could not look beyond the papers before him, and that it was manifest to him from those papers, and the conduct and claims of the parties on the 26th of December, 1846, that McAlister had acquired by virtue of the mortgage of the 12th of October, 1844, all the right of McAlister & Moulthrop, the original purchasers at the sheriff’s sale.
Without taking time to consider how the case would stand, or which of the real parties litigant would have the advantage, upon the facts thus regarded, I think all the matters contained in the return which legally affect the questions to be decided are now before the court, and should be taken into consideration. The defendant is not at liberty to controvert any of them, and it was competent for the relator to have traversed the return, or any material part of it, by plea. Or he might have demurred to the return, and then the cause would have gone upon the calendar for the general term, and been heard as an enumerated motion. He had his election between that course, and bringing on the case as a non-enumerated motion, founded upon the return, unless the court should specially direct formal pleadings tó be interposed. (The People, ex rel. Bentley, v. Comm'rs &c. of Hudson, 6 Wend. 559. See also 16 John. 65.) I shall, therefore, consider the case the same as if it came up on a general demurrer to the return.
The first question is, whether the relator acquired “ all the rights of the original purchaser,” at the sale of the premises in [385]*385question, by the defendant, as sheriff of Orleans county. On the 26th of December, 1846, the day before the expiration of the fifteen months from the time of the sale, he paid the defendant $172, being the amount bid at the sheriff’s sale with interest at seven per cent; and at the same time presented to, and left with the defendant, a copy of the docket of the Swan judgment duly certified by the clerk of the court in which it was docketed, a copy of the assignment of such judgment by the plaintiffs to the relator, verified by his affidavit, and an affidavit stating the true sum then due on the judgment to be $125,98. This was prima facie a compliance with the statute. (2 R. S. 373, § 60.) But it is objected that the relator had no right to redeem the premises; for the reason that the Swan judgment was extinguished by payment to the defendant, who, as sheriff, held an execution which had been issued upon it, at the very moment the relator was attempting to use it for the purpose of acquiring the rights of the original purchaser, and after the relator had paid the $172, to the defendant, as before stated. This payment was made by McAlister, who at the same time directed the defendant to pay back to the relator the $172, which he had just paid to the defendant; which sum, together with the $124,98 due upon the Swan judgment, was tendered by the defendant to the relator, and by him refused. The last sum had been tendered by McAlister to the relator, and in like manner refused before the latter paid the $172 to the defendant, or did any thing towards redeeming the premises. So far as these transactions are to be regarded in the light of a tender, they form no obstacle to the relator’s acquiring the right of the purchaser at the sheriff’s sale. A tender upon a judgment, if not accepted, does not operate as an extinguishment of the lien. This was held in Jackson v. Law & Nelson, (5 Cowen, 248,) and in Ex parte The Peru Iron Company, (7 Id. 540,) .
Nor was it, in my opinion, a payment, so as to operate as an extinguishment of the judgment. 1. It was too late. The relator had paid the $172 to the defendant, and while he was in the act of presenting the papers required by the statute to be [386]*386presented to, and left with the sheriff; the payment was made to the sheriff. The relator’s right to be regarded as a judgment creditor, and as having in that character acquired the purchaser’s interest in the premises, was so far, if not absolutely vested, as to place it beyond the power of McAlister to defeat that right, by paying his judgment, against his will. 2. I think also, the defendant had no right to accept the money of McAlister, as a payment of the Swan judgment. The relator had just before refused it, when tendered by McAlister. It was but a repetition of the effort just made by McAlister, to extinguish the lien of this judgment; and I think the relator had a right to disregard it, as interfering with his right to redeem. The defendant, so far as respected the execution upon the judgment, was the relator’s agent, and was bound to follow his directions when the same were not contrary to law. If the relator was not bound to take the money from McAlister, the sheriff had no right to do it for.him, without his consent. 3. McAlister had no right to pay the execution on this judgment, and thereby extinguish it.'- He was a stranger in respect to this judgment and execution. Laying out of view his agreement with Swan, at the master’s sale, and the mortgage against Henderson of 12th of October, 1844, he had no more to do with the matter than any other stranger. He, with Moulthrop, had purchased the premises at the sheriff’s sale, but that created no privity either with Henderson or the land, except that if the land should not be redeemed in fifteen months, he and Moulthrop would be entitled to a conveyance; and if it should be, then they would be entitled to their money and interest. (Phyfe v. Riley, 15 Wend. 248. Clow v. Borst & Best, 6 John. 37.) 4. It is urged, however, that the judgment in favor of Swan was provided for in the agreement made between him and McAlister at the master’s sale, in pursuance of which, the latter bid for the second parcel of the premises a sum sufficient to satisfy both the decree and this judgment; and that the relator took the assignment from Swan, subject to all equities existing in relation to it. To this it is answered that the agreement was void under the statute of frauds.
[387]*387The statute, (2 R. S. 136, § 3,) is as follows: “ Every contract for the sale of any goods, chattels or things in action, for the price of fifty dollars, or more, shall be void, unless, 1. A note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby: or, 2. Unless the buyer shall accept and receive a part of such goods, or the evidences, or some of them, of such things in action; or, 3. Unless the buyer shall at the time pay some part of the purchase money.” In this case, the contract on the part of Swan was to “ dispose of the judgment, and take no other measures about it." That the agreement was directly within the statute, cannot admit of a doubt. It was a parol executory agreement for the sale of a chose, or thing in action, for over $50, no part of the evidences thereof being accepted or received by the buyer, and no part of the purchase money paid.
The defendant contends that the hen of the Swan judgment was destroyed by the decree in the foreclosure suit, in which the Swans were made parties. I do not think the decree has that effect. 1. All the defendants in the foreclosure suit, except Henderson, were made parties, as having liens subsequent to the mortgage, and Swan’s judgment was prior to the mortgage. 2. When the suit was commenced, McAlister was the owner of this judgment, by assignment, and before the decree was entered, he reassigned it to the Swans. McAlister was not at liberty to set up, that a judgment held by him, when he filed his bill, and assigned by him afterwards, had, by operation of the decree, lost its lien. 3. The mortgage was a lien on one parcel of the premises only, and the judgment upon both. The most that can be claimed is, that the decree extinguished the lien of the judgment upon the portion of the premises embraced in the mortgage. It certainly remained a lien upon the other parcel; and that would be sufficient to entitle him to redeem the whole. Section 53 of the statute, on this subject, is as follows: “ If such judgment or decree be a lien on a specific portion only of any lot, tract or parcel so sold, the creditor having the same may acquire the title of the purchaser to the [388]*388whole of such lot, tract or parcel, in the same manner as if such lien extended to the whole.” (2 R. S. 372.)
I believe all the objections to the relator’s right to acquire the title of the purchasers at the sheriff’s sale have been considered. If none of those objections were valid, the defendant should ' have conveyed the premises to the relator ; unless some other-creditor has become a purchaser from him in pursuance of the 55th section of the statute. It is claimed that McAlister has become such purchaser, and that he was a creditor of Henderson by reason of the mortgage of the 12th of October, 1844. To this there are two sufficient answers. 1. This mortgage was merged in the decree entered upon it, which decree was enrolled, but not docketed. The lien of the mortgage was thus extinguished and gone. That a judgment at law extinguishes the debt upon which it is obtained, is too plain a proposition to require argument, or authority, to prove. And I am not able to see why a decree of a court of equity should not have the same effect. Indeed it seems to me that the rule applies equally in both cases. The decree was not a lien because it was not docketed. If the purchaser at the master’s sale had received a deed, he would have had an equivalent for the lien of the mortgage in a title relating back to the date of the mortgage, and founded upon it. He would however, in that case, stand in the. light of a grantee of the mortgagor, and not of a creditor having a lien. I think also, the mortgage in this case, and the decree entered upon it, were neither of them a lien; for the reason that the latter was satisfied by a sale of the mortgaged premises. This has been repeatedly held in cases of sales of land on 'judgments: and I see not why it should not apply to sales upon decrees. (2 Wend. Rep. 298. 4 Cowen's Rep. 136. 5 Hill’s Rep. 229. 10 Paige’s Rep. 254.) 2. McAlister’s mortgage never was a lien upon the whole premises sold by the defendant. In case of a judgment creditor, this would make no difference, as already shown by reference to the 53d section of the act. But a creditor by mortgage never had a right to redeem, either as grantee or creditor, until it was given to him by-the act of the 26th of May, 1836. (Sess. Laws of 1836, ch. [389]*389525, p. 793.) By that act it is provided that a creditor by mortgage on real estate, his assignee, &c. shall have the same right to acquire the interest of the purchaser as is given to a judgment creditor, by section fifty-one of the article of the revised statutes relative to executions; and on acquiring such interest* shall be subject to all the provisions of that article in relation to the rights of other creditors as were then applicable to judgment creditors by said article. Section 51 of the revised statutes, referred to in the act of 1836, so far as respects this question, is substantially like the 3d section of the act of 1820. (Sess. Laws of 1820, ch. 184, p. 167.) Under the last mentioned act, it was held by the supreme court in Erwin v Shriver, (19 John. Rep. 379,) and in Huntington v. Forkson, (6 Hill’s Rep. 149,) that the lien of the redeeming creditor must extend to the whole of the prepaises sought to be redeemed. If a mortgage creditor seeks to redeem under the act of 1836, his mortgage must be “ a lien and charge upon the premises sold,” hi order to “ have the same right to acquire the interest of the purchaser,” &c. as is given by the above 51st section, to bring himself within it, and secure the right which it confers. In my opinion that is not done by having a mortgage which is, a lien and charge upon a portion of the premises sold; and the act of 1836 does not apply to the cases provided for in the 53d section above referred to.
These views render it unnecessary for me to notice the various other positions taken by the respective counsel upon the argument.
It follows that the relator was entitled to a conveyance from the defendant for the premises sold by him, and that the one given to McAlister was irregular and void.
An order must therefore be entered directing the same to be set aside and cancelled; and that a peremptory mandamus issue directed to the defendant, requiring him to convey the premises in question to the relator; and that the defendant pay the relator’s costs, to be taxed.