President of the Chautauque County Bank v. Risley

4 Denio 480

Opinion

By the Court, Jewett, J.

The title of the plaintiffs i not prejudiced by the failure to have the instruments executed by Tucker & Crane, pursuant to which the sheriff made the conveyance to them, proved and filed in the county clerk’s office, according to the act of 1835. (Stat. p. 210, §§ 1, 2.) That point was adjudged in The Bank of Vergennes v. Warren, (7 Hill, 91,) and has been followed in several subsequent cases.

Footnotes

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(a)

If the conveyance executed by Saxton and his wife to Crane and Crosby, on the first day of October, 1837, was operative, none of the judgments in question were liens on the prenrse» as they were all subsequent to the date of that conveyance. The entry in the margin of the record in the clerk’s office was no evidence of the decree referred to in it, nor was there any other competent evidence of that decree. The conveyance, therefore, is unaffected by the alleged decree. Nor can the position now taken, that the trust conveyance is ineffectual because the trustees have ceased to act under it, be sustained. They could not, by refusing to proceed after accepting the trust, reinvest Saxton with the title, or let in subsequent judgments against him. The point not having been taken on the trial that the trustees had never accepted the trust, it cannot now be relied on. The ground of objection then taken was different; and if it had been made a question whether the trust had been assumed by the trustees, we cannot say but that the fact would have been explicitly proved. I am of opinion, however, that the defendant, who claims under White, is estopped from setting up this conveyance to the trustees. White claims to derive title from Saxton by means of a deed executed by Lester, as receiver, pursuant to a sale made by him in that character, in obedience to a decree in a chancery suit prosecuted by Webb and Douglas against Saxton, Crane and Crosby. That conveyance contains full recitals of a decree of the court of chancery entered in that cause on the first day of November, 1838, whereby it was adjudged that Saxton should assign and deliver to the receiver all his property and effects, including his real estate, which were in his possession at the time of the service of the injunction in the cause, which is stated to have been the sixth day of October, 1838. It also recites the conveyance of Saxton to Lester, as receiver, on the 5th day of' January, 1839, which embraced this real estate, according to the decree; the order requiring Crane, one of the trustees, to convey to the receiver whatever he held under the assignment from Saxton, and the conveyance by him executed in obedience to that order on the 9th day of September, 1839; and, finally, the decree ultimately made in the cause, on the 29th day of ‘February, 1840, setting aside the conveyance to the trustees as fraudulent, and directing the property to be advertised, sold and conveyed by the receiver; and that Lester, as such receiver, had made sale of all the real estate, including that for which this action is brought, to White, subject to the liens and incumbrances thereon, and at his risk; and the conveyance is professedly made in accordance with those proceedings. The defendant, holding under White, is bound by the recitals in the deed by which the latter acquired his title from Lester. The general rule is well settled that recitals in a deed estop parties and privies in estate. (Carver v. Jackson, 4 Pet. R. 87; Jackson v. Parkhurst, 9 Wend. 209; Penrose v. Griffith, 4 Bin. 231.) The assignment to the trustees, therefore, being considered void, there was nothing to-prevent the judgments docketed in May and July, 1838, from being regarded as liens upon the premises; and upon one of these the sale was made which is the foundation of the plaintiffs’ title, and upon the other the redemption was made by Tucker.

The next inquiry is, whether the plaintiffs acquired the title of the purchaser, White, by means either of the redemption made by Tucker, or that made by Crane. Neither of these persons professed to redeem from each other, and as the judgment upon which Tucker proceeded was the prior lien, if his redemption was valid, that made by Crane on a junior, judgment, without paying the elder judgment held by Tucker, was unavailing. Tucker followed the prescriptions of the statute in what he did to acquire the title of White. It is objected that the judgment of which he was the assignee had been paid to Marshall, the attorney. He however had no authority to receive the money. More than two years had expired since the judgment was rendered, and he could no longer acknowledge satisfaction. (2 R. S. 362, § 24.) Besides, his authority had been expressly revoked by Tucker, of which White was informed when he paid the money. The tender of the money, said to have been made to Tucker, did not per se destroy the lien of the judgment. It might notwithstanding' be used to effect a redemption. (Jackson v. Law, 5 Cowen, 248; S. C. 9 id. 641.)

Being of opinion, therefore, that Tucker’s redemption was valid, it is unnecessary to inquire whether the subsequent judgments upon which Crane proceeded were liens on the premises or not. The question respecting the right of a creditor who has effected a redemption to transfer the interest thus acquired to another, before the execution of a conveyance by. the sheriff, applies as well to the redemption by Crane as to that by Tucker. Crane was the unqualified assignee of the judgments recovered by the plaintiffs, and whatever he did in making the redemption was in that character. It was in no sense a redemption made by the plaintiffs, whatever may have been the understanding of the witnesses as to the relation which Crane sustained towards the plaintiffs in these transactions.

This brings me to the question whether the plaintiffs had a legal capacity to acquire a title to the premises by an assignment from one who had acquired the title of the purchaser at the sheriff’s sale. That depends upon the construction to be given to the charter of the plaintiffs’ bank. (Sess. Laws, 1831, ch. 181.) It enacts that “the real estate which it shall be lawful for the said corporation to purchase, hold and convey, shall be,” that which is required for its immediate accommodation in the transaction of its business, such as shall be mortgaged to it to secure loans or debts due, or conveyed to it in satisfaction of debts ; and 4. “ such as shall have been purchased at sales upon judgments, decrees or mortgages, obtained or made for such debts.” It is added that “ the said corporation shall not purchase, hold or convey real estate, in any other case, or for any other purpose.” (§ 4.)

The fourth subdivision above referred to contains the only authority which it is pretended the plaintiffs had to receive the transfer in question. At the time of the execution of the instrument of transfer, Tucker was the owner of all the rights which White acquired by his purchase at the sheriff’s sale, and this interest had become absolute, the fifteen months allowed for redeeming having expired. He was therefore entitled to a conveyance of the premises, and also to his judgment against Saxton, which was unaffected by the redemption. (Emmet v. Bradstreet, 20 Wend. 50.) Both these rights or interests, he, by this deed, attempted to convey to thé plaintiffs. Admitting that the bank might, within the equity of this statute, have acquired the rights of White on account of their judgments against Saxton, by paying the sum bid by White with the in- . terest, and conforming to the requirements of the statute providing for redeeming lands sold on execution, as I am inclined to think it might, still that is not what has been done in this instance. Nor was the transfer which Tucker executed, made in consideration of any debt previously contracted to the plaintiffs. The purchase from Tucker was independent, so far as the evidence discloses, of any such consideration—and I am un able to discover any difference in principle, between this case, and that which would have been presented, if the bank had delayed until Tucker had perfected his title, and had then prevailed on him to have released or assigned his right to the bank upon some consideration, other than for a debt, previously contracted. The circumstance that the bank had a debt against Saxton contracted in the course of its dealings, which must be lost unless saved by the benefit of the bargain, which could be made with Tucker, does not bring the case within the terms or spirit of the statute. I am of opinion, therefore, that the purchase by the plaintiffs was without authority of law, and that it was void. A new trial ought consequently to be granted.

Bronson, Ch. J. dissented.

New trial granted.

.) The People v. Muzzy, (1 Denio, 239;) The People v. Ransom, (ante, p. 145)