Boyce v. Wight. recorded. To follow the analogy, the certificate of redemption would be notice of the fact therein estated. If a creditor, he would give notice that a sheriff's deed, upon a prior redemption by a creditor, was void. If the debtor, he would give notice that a deed by the sheriff to any, would be void, whether to purchaser or redeeming creditor. Before the statute of 1847, the redemption by debtor or his grantee within twelve months from sale absolutely annulled the right of the sheriff to sell. If he conveyed to a purchaser, the conveyance was null. No creditor could redeem, and his attempted redemption was null. If the debtor did not redeem, then there would be some one, either a purchaser or his assignee, or a redeeming creditor, who would be entitled to a deed from the sheriff. The power of the sheriff to convey to some one would be valid and perfect, and the contest, if there were one, would be as to who should have the conveyance. When I consider that there are important sections unrepealed (unless it may be by implication, which is not to be entertained unless in an extreme case of repugnancy), which provide for the sale under execution being null and void, I come to the conclusion that section 6 was intended to determine who should have the right to a conveyance, when the sheriff had remaining a power to convey, and was not meant to make any new rule as to the sheriff's power to convey. I agree with the learned counsel for the plaintiff that the correct result would be to confine section 6 to certificates of redemption made by creditors, if Livingston v. Arnoux (56 N. Y. p. 507), did not say that it also extended to redemption by debtors, and therefore a conclusion will be confined to considering whether, under any construction of section 6, the sheriff has any power to convey if a debtor has competently redeemed. If we view in a large way the effect of the statute, as Boyce v. Wight. allowing a person to get a deed from the sheriff, conveying the same rights as he would competently get, provided the facts did not exist of which he would have notice, if the certificate of a redemption by a debtor were recorded, it would be by deeming that the debtor's omission to file his certificate was a waiver of his rights under the redemption, and that, as to him, the land which the sheriff sold would be deemed unredeemed. But before such a result could be reached, we have to say, that section 6 intended to put the debtor upon his election, to give notice by recording his certificate or to waive his rights under a redemption by him. A construction that would compel a waiver or work a forfeiture of the rights in question, by an act in pais, should be avoided if possible. The law supposes that when the object is to divest such rights, that clear language will be used. In the present case the owner of the fee did not do any act which the assignee of the purchaser might rely on in taking his assignment. He omitted something, viz., to file a certificate. He had paid the money to the sheriff for the use of the purchaser, as he was directed to by law. That fact satisfied all the purchaser's claim. It would not be a violation of the analogies of the law to say that the assignee of the purchaser cannot get more than the purchaser had, and it can hardly be doubted that the purchaser would have no right to the title as against the debtor. If the statute has said otherwise that is sufficient. The recording act had said that every conveyance shall be recorded, and if not it shall be void against subsequent purchasers. Section 5 of the act of 1847 did not make it a duty to get a certificate, nor to have it acknowledged or recorded; but such certificates may be proven, and if they are, on being duly recorded shall have the effect described. Boyce v. Wight. Before this there was no duty on the part of a debtor to file a certificate. This statute did not inform subsequent purchasers that by it such became the duty of the redeeming debtor; and therefore I do not think an omission to record resulted in a forfeiture or waiver of the debtor's rights under his redemption. If it did not, then the statute annulling the sale when the debtor redeems, is in force, and further, the land has been redeemed, and the statute enabling the sheriff to sell only unredeemed land, has the full force of the plain meaning of its language. Is there a great hardship here? I think not, for the fact of redemption may be ascertained, except in cases of neglect of duty by the sheriff, which the law will not presume, by ascertaining from him whether the debtor has paid the money within twelve months from the sale under execution. The plaintiff should have judgment with costs, but not an allowance. There may be an appeal in this case. After the foregoing decision had been rendered, the plaintiff's counsel discovered that the judge had granted interest only from the commencement of the suit, and moved to correct his decision by granting interest from the time the money was paid, which would make a difference of about $3,000 in plaintiff's favor. George A. Black (Scudder & Carter, attorneys), for the motion,-Urged in substance, that the statute alone conferred the right of action, and that it gave the right to "sue and recover" the money "with lawful interest and costs of suit," &c. That the right to recover the interest antedated the suit, or else one could not sue for the interest. That this statute was Miles v. Titus. perhaps the only one giving interest; that it escaped the attention of Senator SPENCER, in Rensselaer Glass Factory v. Reid, 5 Cow. 587. See also, Ruckman v. Pitcher, 20 N. Y. 14; McCormick v. Penn. Cent. R. R. Co., 49 Id. 315; McCollum o. Seward, 62 Id. 318; Mailler v. Express Prop. Line, 61 Id. 316; Purdy v. Philips, 11 Id. 406; Graham v. Chrystal, 2 Abb. Ct. App. Dec. 263. Isaac L. Egbert, opposed. The motion was granted in April, 1877, and it was ordered accordingly. MILES v. TITUS. N. Y. Superior Court; Special Term, March, 1877. APPEAL.-PLEADING.-REFEREE. Where a plaintiff in an action is not estopped by the result of a previous action from insisting upon his rights, an action will not lie to reform the pleading therein. The proper remedy of a party injured by an order confirming a referee's report, even when containing a reservation of the party's right to bring an action, is to appeal from the order. Where the only wrong complained of in a complaint was that schedules referred to in the description of certain leases were ambiguous on their face, or had been made so by an order of the court, or incorrectly described the rights intended to be conveyed ;-Held, on demurrer, that the complaint did not state facts sufficient to constitute a cause of action, because it did not allege in what state the schedules were when the leases were made; whether they conformed to the intentions of the parties, and if they did, what were the facts which called for changing them against the intentions of the parties, or if not, how the schedules should be. Demurrer to complaint. Miles v. Titus. This action was brought by William A. Miles and Charles H. Bailey, as executors of the last will, &c., of William B. Miles, against Eliza A. Titus, to have a former judgment of this court, in a suit of the said Eliza A. Titus, the plaintiffs, and others, against Anna J. D. Burr, and others, opened, and that the plaintiffs and defendant herein have leave in some way to raise an issue as between themselves, as to the extent of their respective ownership of two certain lots of land known as 61 and 63 Chrystie street, in the city of New York, besides other relief, and also for an injunction. The complaint stated, that on or about January 26, 1847, Polly Buchanan and Ann Johnson, being the owners in fee of four lots of land between the Bowery and Chrystie street, "containing together in breadth on the Bowery and Chrystie street, fifty feet, in length on the northerly side, two hundred and nine feet, and in length on the southerly side, two hundred and twelve feet, with the appurtenances," leased the same to Mary Luff for the term of twenty-one years, from April 30, 1847, at the yearly rent of $900 and taxes and assessments. That this lease contained a covenant that the lessors would purchase the buildings which were erected during the term, according to an appraisement to be made, or would renew the lease at a rent to be determined by the rent of lots of land in the neighborhood. That this lease was duly recorded. That afterwards on the same day, the said Mary Luff leased to George H. Titus for twenty-one years from May 1, 1847, at a yearly rent of $400 together with taxes and assessments, two of the aforesaid lots, being bounded and containing easterly in front by Chrystie street, fifty feet, westerly in the rear by the other two aforesaid lots, fifty feet, northerly and southerly by other land, one hundred feet, "with the appurtenances, and with privilege of reserving an alley of three feet in width, in the clear, to extend from Chrystie street to |