Hall v. Fisher , 1 Barb. Ch. 53 ( 1845 )

The Chancellor.

The injunction was clearly wrong, so far as it restrained the defendant H. Fisher from instituting any proceeding in equity to compel an account and payment of the profits of the one fourth of the ore beds which are in controversy. For if the complainant had an equitable defence to such a suit, it was perfectly competent for him to set it up in answer to a bill filed by the adverse party for such an account. And even if it was necessary to set aside the sheriff’s deed, as improperly executed after a valid and effectual redemption of the premises, that object could have been effected by filing a cross-bill.

So far as relates to the right of the deputy sheriff, who sold the premises, to authorize the deposit of the redemption money with the county clerk, as his agent, I should have very little difficulty in coming to the conclusion that such a deposit must be considered as a valid payment to the deputy. The money, between the time of redemption and of the payment thereof to the purchaser at the sheriff’s sale, in satisfaction of his bid, must remain somewhere for safe keeping. And if the sheriff had directed the redeeming creditor to deposit the money in a bankj for the sheriff, and to obtain a certificate of such deposit, I think if the redemption money had been so deposited, and the receipt of the proper officer of the bank' furnished to the sheriff, within the time allowed by law for redeeming, it should be, at law as well as in equity, construed as a valid payment to the sheriff; so as to render the redemption effectual. A general deputy of the sheriff may constitute another person his special agent to hold money for him as a mere depositary. And the fact that such agent is not aman of pecuniary responsibility, does not constitute a legal objection to him, where there is no reason to suppose he will use or misapply the money before it is wanted by the sheriff to pay over to the person entitled to the same. If there was, therefore, a distinct and positive allegation i.fthis bill that the complainant actually paid over to tire county clerk the whole amount of the bid, with interest thereon at the ■rate of ten per cent per annum from the day of the sale, I should not hesitate to declare that the premises were regularly and legally redeemed from the sale. That point, however, is left doubtful in the bill; and I find nothing in the bill to show that the deputy sheriff either constituted or intended to constitute the county clerk his agent, to compute and ascertain the amount which was necessary to be paid to redeem the property. The charge in the bill is that the deputy sheriff directed the complainant to go to the clerk’s office, where the certificate was on file, and deposit the amount of the redemption money with the county clerk. The clerk, therefore, being the mere agent of the deputy sheriff to receive the redemption money, after the complainant should have ascertained the amount thereof by an examination of the certificate on file, if the complainant employed such clerk to compute the interest, instead of computing it himself, he is in no better situation than if he had relied upon his own computation; and had made a short payment in consequence of a similar error in the computation.

Where the sheriff himself makes a miscalculation of the interest, and thereby misleads the party coming to redeem, there may be good reason for holding the redemption valid and effectual, even at law; and for charging the sheriff with the deficiency, arising from a short payment through his miscalculation, exclusively. But where, as in this case, the redeeming party is left to make the calculation for himself, or by an agent employed by him for that purpose, I think the redemption is invalid at law; and that the purchaser, who obtains the sheriff’s deed of the premises, is entitled to the legal estate. Whether the court out of which the execution issued, upon ah application to its equitable powers previous to the execution óf the sheriff’s deed, can relieve the person entitled to redeem, against the consequences of such a mistake, or whether this court has any power to grant such relief, after the execution of a sheriff’s deed passing the legal title of the premises to the purchaser, are questions which do not prqperly arise upon this application. For, it does not distinctly appear from the complainant’s bill, whether any such mistake has in fact occurred in this case. To raise that question, and to show that the complainant had not a perfect defence at law, he should have stated in his bill that, by a mere mistake in computing the interest, the amount of the redemption money was short of the sum required to make up the full sum mentioned in the sheriff’s certificate with interest thereon at the rate of ten per cent per annum; or the complainant should'at least have stated that it was doubtful whether the amount paid by him was not too small, owing to an error of the county clerk in computing the interest.

In the absence of siich an allegation, showing that the defence of the complainant at law was imperfect, or at least doubtful, the injunction should be dissolved, so as to enable the parties to "settle their legal rights in a court of law. The motion to dissolve the injunction must therefore tie granted; but without prejudice to the right of the complainant to apply to renew it, upon an amended bill containing the proper allegations in this respect.