Hall v. Thomas , 27 Barb. 55 ( 1858 )

By the Court, Johnson, J.

The only evidence which the defendant presented to, and left with, the sheriff, of his title to the judgment under which he claimed the right to redeem, was his own affidavit that he was owner, and assignee, and a paper purporting to be an assignment thereof from the plaintiffs therein to him. This paper was not verified by the affidavit of any one, and there is nothing in the defendant’s affidavit by which it is identified as the instrument under which he claims to own, and hold, the judgment. This clearly was not sufficient. It is not the evidence required by the statute, from a creditor coming to redeem; and the sheriff had no power to convey the title to the premises upon it, to the defendant. The statute requires a true copy of all the assignments necessary to establish the claim, verified by the affidavit of the party claiming, or some witness to the assignment. The referee has found, from the evidence before him on the trial, that the paper purporting to be an assignment, left with the sheriff, was the original assignment, by the plaintiffs in the judgment, to the defendant. But there was no such evidence before the sheriff. The statute contemplates the exhibition of the evidence of the claimant’s right, under the sanction of his oath, or the oath of some subscribing witness, so that the purchaser or officer may see from the papers presented and verified, that the right and claim are well founded. Had the paper purporting to be an assignment been verified by the defendant’s affidavit, or identified as the assignment executed to him, under which he claimed, it would doubtless have been equivalent to a verified copy, and have fulfilled the statutory requisition. The original is the best evidence, and includes a copy. But the sheriff could not dispense with the verification required by statute. It is an essential part of the evidence of right, and nothing else can be substituted for it, by the redeeming creditor. (Waller v. Harris, 7 Paige, 167; S. C. in error, 20 Wend. 555. The People v. Covell, 18 id. 598. Butterfield v. Howe, 19 id. 86. Ex parte Bank of Monroe, 7 Hill, 177. Silliman v. Wing, Id. 159. The People v. Fleming, 2 Comst. 484.) As the defendant was not entitled to redeetn, Upon Ms papers, he took nothing by his deed. The deed executed by the sheriff afterwards, to the plaintiff, vested the title in the latter, and the action is well brought. The defendant’s deed, having been executed by the sheriff, without any power* or authority to execute it,- was void, as against the plaintiff’s deeid,- and it was not necessary to have it set aside, or canceled, by action, before bringing an action to recover possession of the land. The' judgment must therefore be affirmed.

[Monroe General Term, March 1, 1858.

Welles, Smith and Johnson, Justices.]