Colvin & Johnson v. Baker

By the Court, Harris, P. J. Assuming, as we must in this case, that the facts which the defendant offered to prove are true, I think they constitute a complete defence to the action. It was undoubtedly enough, in the first instance, for the plaintiffs to prove their title perfected under the judgment against Holmes, and to prove that at the time the judgment was docketed, as well as at the time of the sale, Holmes was in possession of the premises. His possession was prima facie evidence of title. He, or any one else, coming into possession under him, became, when the sheriff’s deed was executed, quasi tenant at will to the plaintiffs, if he had such an interest in the premises as might be sold upon the execution against him. In such a case his rights would pass to the plaintiffs by operation of law, and he would be estopped from denying their title. (Jackson v. Jones, 9 Cowen, 182. Jackson v. Sternbergh, 1 John. Cas. 153.) But, even if Holmes himself had been defendant, I think it would have been competent for him to have shown, that his interest in the premises was such as could not be sold on execution, and that therefore the plaintiffs really acquired nothing by their sheriff’s deed. The revised statutes declare that estates at will or by sufferance shall not be liable as such to sale on executions. (1 R. S. 722, § 5.) According to the case, [208] as it now appears, Holmes, at the time the judgment under which the plaintiffs’ claim was docketed, had no other estate or interest in the premises, and of course the plaintiffs acquired no estate or interest by their sheriff’s deed. By the release executed by Holmes to his co-tenant, in February, 1841, the possession of Holmes was converted into a tenancy, and when the premises were granted to the defendant, Holmes continuing in possession, became a tenant at sufferance of the defendant; the distinction between a tenancy at will and a tenancy by sufferance being, that the former is created by the consent, and the latter by the laches of the owner. The evidence I think was clearly admissible, and the report of the referee must therefore be set aside.