The Chancellor.
The decree in this case is erroneous in some particulars, independent of the important question upon the merits, as to the regularity of the complainant’s redemption of the premises from the sheriff’s sale. The [173]*173decree upon a bill to redeem should fix the time within which the redemption is to take place ; and should direct the complainant’s bill to be dismissed with costs if the money is not paid within the time prescribed. Here the complainant is to have six months, and such further time as the court may allow for that purpose; and without allowing to the defendant the interest, on the amount originally due, in the meantime. And no provision is made in the decree for the dismissal of the bill, so as to foreclose the complainant’s equity of redemption if he neglects to redeem within the time prescribed. Even if it was just and equitable to deprive the defendant of the interest of her money from the time of the tender, upon the supposition that the complainant had kept the money always ready since that time, surely there could be no good reason for permitting him to keep the money six months longer without interest.
Again; it was erroneous to decree a perpetual injunction to stay the proceedings in the ejectment suit against third persons, not parties in this cause, and without paying to the plaintiff in that suit the costs which had accrued therein at the time of the complainant’s offer to redeem. The foreclosure of the mortgage was certainly valid as against D. Mason the mortgagor. The ejectment suit was therefore properly commenced against him, to recover the possession of the premises, and the rents and profits of the premises from the time the statutory foreclosure was completed, even if the complainant had a right to redeem. D. Mason being in possession at the time that foreclosure was completed, he became a tenant at will to Mrs. Harris from that time. And he certainly had no right to attorn to the complainant, so as to become his tenant, until the latter had obtained some pretence of right to the possession of the land, by a tender of the money due on the mortgage. The ejectment suit was therefore rightfully commenced ; and if Mason had been a party to this suit Mrs. Harris should not have been enjoined from proceeding against him, until he had paid the costs, and the rents and profits of the premises, or the interest on the- mortgage monies during the time she has been deprived of them by this decree.
[174]*174From the conclusion at which I have arrived on another part of this case, it is not necessary that I should inquire whether it was competent, under the pleadings in this cause, to examine into the consideration of the judgment of J. Harris against D. Mason and. J. L. Mason, in 1824. As the statute foreclosure was a mere nullity as against subsequent incumbrancers, no such incumbrancer had any right to claim the surplus raised on that sale, unless he first released to the purchaser all future claim upon the equity of redemption. In other words he could not take the price of the equity of redemption, which was supposed to be foreclosed, and at the same time retain his right to redeem as against the statute foreclosure. The surplus on that sale was therefore a matter between D. Mason and Mrs. Harris, with which this complainant has nothing to do. And if he redeems the premises from the statute foreclosure, then there is in fact no surplus for which she is bound to account to any body. But if the premises were not properly redeemed from the sheriff’s sale, so that the equity of redemption as to all incumbrancers, subsequent to the Barker judgment, was cut off by the sale under that judgment and the statute foreclosure, then the defendant has a right to apply that surplus to the payment of her two last judgments against D. Mason, if she thinks proper to do so, as to the validity of which there is no dispute.
The evidence in this case shows conclusively that the complainant did not comply with the directions of the statute, in His attempt to redeem the premises from the sheriff’s sale to Mrs. Harris; for the copy of the docket of the judgmenl was not produced to the sheriffwithin the time allowed by law for redeeming. And the receipt of the money by the defendant’s agent, under the false representation by the sheriff that the certified copy of the docket was produced, did not alter her rights; as she repudiated the transaction, and offered to return the money and interest, as soon as she ascertained that her agent had been decieved and imposed upon by that misrepresentation of fact. Even if the statutory directions in relation to the redemption of lands by a judgment creditor could be dispensed with by [175]*175the sheriff, the conduct of the officer m this case was unjust and oppressive towards Mrs. Harris. For if he could dispense with a technical compliance with the directions of the statute, to enable Waller to redeem the premises from her purchase, it was equally his duty to dispense with a similar technicality to preserve her rights as a prior judgment creditor. In this case it will be seen that Mrs. Harris was the owner of a judgment junior to that under which she had bid off the property, but prior in date to that under which the sheriff permitted Waller to redeem ; and that she had done every thing which was necessary to satisfy the sheriff that she was entitled to be paid that judgment, in addition to the amount of her bid, except that she did not comply with the technical requirements of the statute, by producing to him the assignment of that judgment from Bradley and others, in addition to the copy of the docket and her affidavit that the judgment belonged to her, and of the amount then due thereon. The sheriff therefore, if he meant to be governed by the principle of doing equal and impartial justice to both parties, should either have required a strict compliance with the requirements of the statute on the part of Waller, or he should have dispensed with a technical compliance on the part of Mrs. Harris. And as he permitted Waller to redeem upon an affidavit only, and without the clerk’s certificate of the docketing of the judgment, he should have considered Mrs. Harris’s affidavit equally valid as that of Waller’s agent. He therefore should have required Waller to pay the amount due to Mrs. Harris on the prior Bradley judgment, in addition to the amount of her bid, although the assignment was not annexed to her affidavit, beforé he permitted him to redeem upon papers which were technically defective.
The evidence in the case shows that the Bradley judgment was a lien upon the land, prior in point of time to that upon which the complainant attempted to redeem. And as Harris was a mere surety for the other defendant in the judgment, the payment of the judgment by his executrix, and taking an assignment thereof for her own security, did not discharge the lien upon the land of the principal debtor. [176]*176On the contrary if Harris had himself been living, he would in equity, upon the payment of the debt, have been subrogated to all the rights and remedies of the plaintiffs in that judgment ; and could have enforced the lien of the judgment against the lands of his co-defendant, the real debtor. Here Mrs. Harris adopted a course, in relation to the Bradley judgment, by which the lien thereof was preserved as against the lands of the real debtor, at law as well as in equity ; for she bought in the judgment and took an assignment thereof, for the protection of the estate of the surety. As such assignee, therefore, she had a perfect right to redeem under the statute, (2 R. S.
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The Chancellor.
The decree in this case is erroneous in some particulars, independent of the important question upon the merits, as to the regularity of the complainant’s redemption of the premises from the sheriff’s sale. The [173]*173decree upon a bill to redeem should fix the time within which the redemption is to take place ; and should direct the complainant’s bill to be dismissed with costs if the money is not paid within the time prescribed. Here the complainant is to have six months, and such further time as the court may allow for that purpose; and without allowing to the defendant the interest, on the amount originally due, in the meantime. And no provision is made in the decree for the dismissal of the bill, so as to foreclose the complainant’s equity of redemption if he neglects to redeem within the time prescribed. Even if it was just and equitable to deprive the defendant of the interest of her money from the time of the tender, upon the supposition that the complainant had kept the money always ready since that time, surely there could be no good reason for permitting him to keep the money six months longer without interest.
Again; it was erroneous to decree a perpetual injunction to stay the proceedings in the ejectment suit against third persons, not parties in this cause, and without paying to the plaintiff in that suit the costs which had accrued therein at the time of the complainant’s offer to redeem. The foreclosure of the mortgage was certainly valid as against D. Mason the mortgagor. The ejectment suit was therefore properly commenced against him, to recover the possession of the premises, and the rents and profits of the premises from the time the statutory foreclosure was completed, even if the complainant had a right to redeem. D. Mason being in possession at the time that foreclosure was completed, he became a tenant at will to Mrs. Harris from that time. And he certainly had no right to attorn to the complainant, so as to become his tenant, until the latter had obtained some pretence of right to the possession of the land, by a tender of the money due on the mortgage. The ejectment suit was therefore rightfully commenced ; and if Mason had been a party to this suit Mrs. Harris should not have been enjoined from proceeding against him, until he had paid the costs, and the rents and profits of the premises, or the interest on the- mortgage monies during the time she has been deprived of them by this decree.
[174]*174From the conclusion at which I have arrived on another part of this case, it is not necessary that I should inquire whether it was competent, under the pleadings in this cause, to examine into the consideration of the judgment of J. Harris against D. Mason and. J. L. Mason, in 1824. As the statute foreclosure was a mere nullity as against subsequent incumbrancers, no such incumbrancer had any right to claim the surplus raised on that sale, unless he first released to the purchaser all future claim upon the equity of redemption. In other words he could not take the price of the equity of redemption, which was supposed to be foreclosed, and at the same time retain his right to redeem as against the statute foreclosure. The surplus on that sale was therefore a matter between D. Mason and Mrs. Harris, with which this complainant has nothing to do. And if he redeems the premises from the statute foreclosure, then there is in fact no surplus for which she is bound to account to any body. But if the premises were not properly redeemed from the sheriff’s sale, so that the equity of redemption as to all incumbrancers, subsequent to the Barker judgment, was cut off by the sale under that judgment and the statute foreclosure, then the defendant has a right to apply that surplus to the payment of her two last judgments against D. Mason, if she thinks proper to do so, as to the validity of which there is no dispute.
The evidence in this case shows conclusively that the complainant did not comply with the directions of the statute, in His attempt to redeem the premises from the sheriff’s sale to Mrs. Harris; for the copy of the docket of the judgmenl was not produced to the sheriffwithin the time allowed by law for redeeming. And the receipt of the money by the defendant’s agent, under the false representation by the sheriff that the certified copy of the docket was produced, did not alter her rights; as she repudiated the transaction, and offered to return the money and interest, as soon as she ascertained that her agent had been decieved and imposed upon by that misrepresentation of fact. Even if the statutory directions in relation to the redemption of lands by a judgment creditor could be dispensed with by [175]*175the sheriff, the conduct of the officer m this case was unjust and oppressive towards Mrs. Harris. For if he could dispense with a technical compliance with the directions of the statute, to enable Waller to redeem the premises from her purchase, it was equally his duty to dispense with a similar technicality to preserve her rights as a prior judgment creditor. In this case it will be seen that Mrs. Harris was the owner of a judgment junior to that under which she had bid off the property, but prior in date to that under which the sheriff permitted Waller to redeem ; and that she had done every thing which was necessary to satisfy the sheriff that she was entitled to be paid that judgment, in addition to the amount of her bid, except that she did not comply with the technical requirements of the statute, by producing to him the assignment of that judgment from Bradley and others, in addition to the copy of the docket and her affidavit that the judgment belonged to her, and of the amount then due thereon. The sheriff therefore, if he meant to be governed by the principle of doing equal and impartial justice to both parties, should either have required a strict compliance with the requirements of the statute on the part of Waller, or he should have dispensed with a technical compliance on the part of Mrs. Harris. And as he permitted Waller to redeem upon an affidavit only, and without the clerk’s certificate of the docketing of the judgment, he should have considered Mrs. Harris’s affidavit equally valid as that of Waller’s agent. He therefore should have required Waller to pay the amount due to Mrs. Harris on the prior Bradley judgment, in addition to the amount of her bid, although the assignment was not annexed to her affidavit, beforé he permitted him to redeem upon papers which were technically defective.
The evidence in the case shows that the Bradley judgment was a lien upon the land, prior in point of time to that upon which the complainant attempted to redeem. And as Harris was a mere surety for the other defendant in the judgment, the payment of the judgment by his executrix, and taking an assignment thereof for her own security, did not discharge the lien upon the land of the principal debtor. [176]*176On the contrary if Harris had himself been living, he would in equity, upon the payment of the debt, have been subrogated to all the rights and remedies of the plaintiffs in that judgment ; and could have enforced the lien of the judgment against the lands of his co-defendant, the real debtor. Here Mrs. Harris adopted a course, in relation to the Bradley judgment, by which the lien thereof was preserved as against the lands of the real debtor, at law as well as in equity ; for she bought in the judgment and took an assignment thereof, for the protection of the estate of the surety. As such assignee, therefore, she had a perfect right to redeem under the statute, (2 R. S. 273, § 58.) And she had done every thing requisite to entitle her to the payment of that judgment, upon a redemption by a junior judgment creditor, except the production to the sheriff of the assignment itself in addition to her affidavit proving the fact. If I supposed, therefore, that the sheriff had a right,- in his discretion, to dispense with a strict compliance with the requirements of the statute, I should hold this such a gross piece of favoritism on the part of the sheriff, in dispensing with a strict compliance in favor of one judgment creditor, and enforcing it strictly as against another, to the manifest injury of the latter, that a court of equity could not sustain such an unconscientious proceeding. I therefore should not have permitted the complainant to redeem, in any event, without paying the full amount due on the Bradley judgment, and the costs of this suit, in addition to the amount due upon the mortgage, with interest.
Upon a careful examination of the provisions of the statute, however, I am satisfied that it was never the intention of the revisers, or of the legislature, to leave it to the discretion of the sheriff to decide whether he would insist upon, or dispense with, the documentary proof which the party applying to redeem is by law required to produce. And the fact that the exercise of such a discretion might lead to the favoritism and injustice which has occurred in the present case, is a strong if not a conclusive argument against the existence of such a dispensing power on the part of the sheriff. The statute is imperative that to entitle any cred[177]*177itor to acquire the title of the original purchaser or to become a purchaser from any other creditor, under the statute, he shall present to, and leave with such purchaser or creditor, or the officer who made the sale, as one of the evidences of his right, “ a copy of the docket of the judgment or decree, under which he claims the right to purchase, duly certified by the clerk, &c.” (2 R. S. 373, § 60.) It is important, in a case of this kind, that parties should know what their rights are at the time the redemption is to take place; and it will lead to endless litigation if every deputy sheriff in the state is permitted to assume this power to dispense with the requirements of a positive statute, in such cases as he may think proper. If he could dispense with the production of any of the documentary evidence required, for a few hours after the expiration of the fifteen months allowed to redeem, he might also for a few days or weeks, or even for months afterwards. In the case of The People v. Livingston, (6 Wend. Rep. 526,) although the precise question now presented was not then under consideration, the supreme court seems to have taken it for granted that the sheriff had no power to dispense with the documentary evidence required by the revised statutes, in the case of a sale made subsequent to the time when those statutes took effect. The conclusion at which I have arrived in this case therefore is, that the complainant did not legally redeem the premises from the sale on the execution in favor of Barker; and that he acquired no title to the premises under the sheriff’s deed. Of course he had no right to redeem the premises from the mortgage, the equity of redemption being then in the defendant under the sheriff’s sale, although she had not obtained a transfer of the legal right by the execution of a deed from the sheriff. At the expiration of the' fifteen months, the liens of all the judgment creditors subsequent to the judgment under which she bid in the property were absolutely cut off; and their equitable rights to redeem the premises from the statute foreclosure were thereby forever extinguished. The defendant having united her equitable right, to a conveyance from the sheriff, with her legal title under the statute foreclosure, her absolute title to the land is unques[178]*178tionable, even without the formality of the execution of a deed from the sheriff; although she has a right to demand the execution of such a deed for the purpose of protecting her title to the other real estate purchased by her at the sheriff’s sale, not included in the mortgage. The decree of the vice chancellor must therefore be reversed with costs; and a decree must be entered, declaring that the premises sold by the sheriff and bid in by Mrs. Harris were not legally redeemed from that sale, by the complainant Waller; that the deed from the sheriff to him was and is absolutely inoperative and void ; and that the complainant, therefore, has no right to redeem the premises in question in this suit from the Stephenson mortgage ; and that the bill in this cause be dismissed with costs.
The bill is not properly framed to recover back the money paid to the defendant’s agent by the sheriff, and which she offered to refund when she discovered the deception which had been practised. But as the defendant admits the complainant’s right to the money, the latter, if he thinks proper, may insert a provision in the decree for the refunding of that money, and the interest thereon; upon his procuring from the sheriff a deed to her for the several parcels bid off by her on the Barker execution, and paying to her the value of the use of the premises which, by the injunction in this cause, she has been kept out of the possession of pending this suit. If he does not agree to these terms the bill is to be dismissed, without prejudice to his right to proceed at law, or in equity, as he may be advised, to recover back the monies paid by the sheriff to the defendant’s agent.
Affirmed on appeal to the court for the correction of errors, Dec. 1838.