The People ex rel. Sally Chase against Rathbun, late Sheriff, &c.

The People ex rel. Sally Chase against Rathbun, late Sheriff, &c. The county clerk cannot,'without a special deputation for that purpose, a.ct in the sheriff’s behalf in receiving money paid for the redemption of real estate from sale upon execution, although the sheriff has no other office than the county clerk’s office. A judgment creditor, for the purpose of acquiring the rights of the purchaser of real estate, under a sheriff’s sale upon a prior judgment, paid the proper amount of money to the county clerk, at his office, which was also the , office of the sheriff, neither the sheriff nor any of his deputies being present; and the fifteen months within which such redemption could be made, expired; Held, that such payment was ineffectual to make a redemption, and that the defect -was not cured by the original purchaser’s taking the money from the clerk on the following day, and using the same to effect a second redemption from the first redeeming creditor. Mandamus upon the relation of Sally Chase to the sheriff of Allegany county, requiring him to execute to her a deed of certain real estate, which he had sold upon execution, and to which she claimed to have acquired the right, by redemption under a subsequent judgment. The relator, traversed the sheriff’s return, and upon the trial before Mr. Justice Marvin, without a jury, the following facts appeared: One Griffin purchased the land at sheriff’s sale, March 1st, 1849. Saturday, June 1st, 1850, was the last day of fifteen months from the .sale. A few minutes before twelve o’clock at .night of that day, the relator called at the office of the county clerk, which w:as also the office of the sheriff, and presented to the county clerk, neither the sheriff nor any deputy being present, the proper evidence showing her right to redeem; and then paid to the clerk for Griffin, the amount of said Griffin’s bid, with the interest thereon, which was received by the clerk, as and for a redemption of the land from the sheriff’s sale to Griffin. The clerk did not finish counting the money until after twelve o’clock at night. Griffin and his attorney were present, and one of them objected to the redemption being made to the clerk, on the ground that the fifteen months had expired. On Sunday night, the second day of June, a few minutes before twelve o’clock, and within twenty-four hours of the time of the alleged redemption by the relator, Griffin called at the office of the county clerk, the same being, as before stated, the office of the sheriff, the county clerk being there, but the sheriff, under-sheriff and deputies being absent, and then and there proposed to redeem the premises from the redemption made the night before by Mrs. Chase. Griffin presented the proper evidence to entitle him to redeem and acquire the rights of the relator; the clerk then handed to Griffin the money which he h.ad received from the relator the night before, and Giffin immediately paid the same back to the clerk for the relator,, together with-the amount, of the judgment held by the relator, and by virtue, of which she had .made the aforesaid redemption, including the interest on such judgment down to and including Saturday, the nrst day of .June, but no interest upon the said judgment, or on the money which the relator had paid to the clerk as- before stated, was computed pr paid for any time after the said first day pf June. Immediately after twelve o’clock at night, the same, .acts were repeated by Griffin and the clerk, for the purpose of redeeming the premises on Monday, as had just before been performed. No further or other redemptions were attempted; and the sheriff executed a conveyance of the premises to Griffin, June 5th, 1850. Both the sheriff and clerk executed and acknowledged certificates stating the facts in respect to the attempted redemption by the relator, and by Griffin; the sheriff’s certificate stating that the money was paid to the clerk as his agent. The court held, under exception, that the relator had failed to maintain her action. The judgment entered against her was affirmed by the Supreme Court at general term, in the eighth district, and she appealed to this court. A. J. Parker, for the appellant. A. P. Laning, for the respondent. [MAJORITY — Denio, C. J.] Denio, C. J. I believe all the judges agree that both the attempts to acquire the title of the purchaser to the premises in question were ineffectual, unless the one made by the relator was made good by the act of Griffin, the original purchaser, in attempting to use the relator’s money to effect the second redemption. In both instances the money was paid to the clerk, neither the sheriff nor any of his officers being present; while the statute required it to be paid to the officer who made the sale or to the sheriff, under sheriff or one of the sheriff’s deputies. Griffin’s attempt to redeem was also ineffectual, for the further reason that he did not pay money enough. The question, then, is whether the relator’s attempted redemption was confirmed by what took place subsequently respecting her money. It is insisted that this amounted to a waiver of the defect in the relator’s redemption and confirmed and made good that proceeding. I cannot assent to this position. I think the rights of the relator were settled at the expiration of the fifteen ¡months. That time expired on Saturday night, the first of June, at midnight. At that time Griffin, confessedly, had done nothing to prejudice her rights. The relator nad attempted to redeem, but had failed. The time for redemption had expired; the extension of the time for a. further period of twenty-four hours being provided only for cases where a redemption has been once made. If the purchaser afterwards took the relator’s money and converted it to his own use, the relator would no doubt have had a remedy for that injury; and in equity could perhaps compel him to ratify the redemption or return the money. He could not keep the money, and, at the same time, refuse to give effect to the purpose for which it was paid into the hands from which he took it. But in such a case I conceive that the court could not hold that a valid redemption had been made.. The case is not like that of The Bank of Vergennes v. Warren (7 Hill, 91). There the redemption was made to the purchaser; the statute at that time not requiring it to be made to the sheriff.. The purchaser received the papers and took the creditor’s money and gave him a receipt for it. An affidavit, which was one of the necessary papers, was sworn to before an officer in Vermont. It was held that the purchaser had waived the defect in the affidavit. If he had objected at the timé it was offered, the creditor might have procured one correctly sworn to. Not having objected, it was very just to hold him concluded. The doctrine of waiver generally depends upon an equitable estoppel; and if one is silent when good faith requires him to speak, he shall not afterwards be permitted to assert the truth. It is obvious that this principle has no application to the present case. The relator, to effect a redemption was required to do certain acts.and pay certain moneys to the sheriff, in which the purchaser was not a participant. She failed to do this, but not from any fault or on account of any acquiescence of the purchaser; and then the time elapsed within which she could in any way acquire the purchaser’s title. If the purchaser afterwards got her money into his possession, he is subject to the ordinary remedies for such-an act, and I think might, as I have said, have been proceeded against in equity by an action to compel him to ratify the redemption or refund the money. But I do not think the purchaser can be said to have obtained possession of the relator’s money. The act of taking it into his hands and immediately delivering it back to the clerk, from whom he received it, did not prejudice the relator. It was merely a formal act, indicating, it is true, that he supposed the relator had made a valid redemption and intended to effect a second redemption, but which was, however, wholly futile. If the relator would rely upon this ceremony as a ratification of her redemption, she ought to give it effect, in favor of the purchaser, according to his intention. v I am in favor of affirming the judgment of the Supreme Court. Comstock and Brown, Js., did not hear the argument; all the other judges concurring, Judgment affirmed.