#### Williamanna Loring, Plaintiff, *v.*Ella Irwin Chase, Defendant.

(Supreme Court, New York Special Term,

February, 1899.)

Judicial sale — The deed of a purchaser must be stamped.

A purchaser at a judicial sale is entitled to a deed which will defend his title in any tribunal where it is attacked or where he is called upon to assert it, and hence the referee, acting at such a sale, must affix to his deed the revenue stamps required by the War Tax Act of 1898, and particularly where he has retained moneys therefor and has promised the purchaser to affix the revenue stamps, if the court shall so direct. | - .

Reargument of a motion compelling a referee to affix revenue stamps to a deed.

Mooney & Shipman, for motion.

Benj. E. Hall, referee in person, opposed.

*319Scott, J.

Upon the reargument of the motion to compel tñe referee to buy and affix revenue stamps to his deed, it appears that the facts were not fully presented on the former argument. The motion was then denied, because it appeared that the purchaser had accepted the deed unstamped, and, further, that no surplus had resulted from the sale, and that the referee had distributed the proceeds of the sale and filed his report. It now appears that the purchaser objected to the delivery to him of an unstamped deed, and that the referee promised to retain funds to pay for revenue stamps, in case the court should direct them to be put upon the deed, notwithstanding which, without giving the purchaser a reasonable time within which to apply to the court, he distributed the proceeds of the sale and filed his report. It also appears that since the sale the judgment has been amended regarding the amount of fees to be retained by the referee, in such manner that, unless such amendment be revoked, the referee has retained a sum larger than he is entitled to retain as fees by an amount a little larger than the amount of stamps required to be put upon the deed. This leaves for decision the question whether ,the referee should be required to purchase and affix to his deed the revenue stamps prescribed by what is known as the War Tax Act. I think that he should. It is true that the absence of the stamps will not prevent the deed' from being recorded, or from being read in evidence in the courts of this state. People ex rel. Consumers’ Brewing Co. v. Fromme, N. Y. Law Journal, December 28,1898; Moore v. Moore, *47*N. Y. 468. This, however, is not a complete answer to the present motion. A purchaser at a judicial sale is entitled to receive a deed which, so far as such a deed can be, will be a defense to his title in any tribunal in which it may be attacked, or he may be called upon to assert it. He may be so called upon in a federal court, and there his unstamped deed would be valueless as evidence. There is, however, another and a broader reason why the referee should be required to stamp his deed. He is an officer of the court, acting under its direction as its arm. Ho question is made as to the power of the federal congress to lay an excise tax upon the business transactions of communities, and to collect that tax by means of stamps to be placed upon the written instruments exchanged between contracting parties (Moore v. Moore, *supra),*and it is the duty of every citizen to observe the law which imposes such a tax; a duty, the violation of which is under the federal statute a misdemeanor. It would be unseemly, at the very least, *320for this court, which is created for the enforcement and administration of law, to set an example of law-breaking by directing its officer, acting under its authority, to disobey a valid federal statute, and himself become a misdemeanant. The motion to direct the referee, as a part of the expense of the sale, to purchase and affix to his deed the proper internal revenue stamps is granted, but without costs.

Motion granted, without costs.