Stafford v. Williams

By the Court, Johnson, J. It is claimed by the defendant’s counsel, that there being no proof of actual notice to the defendant Jamison of the redemption of the premises by Phelps from the sale under the Oowan 'judgment, he, Jamison, is to be regarded as a bona fide purchaser, and is to be protected in his purchase, as Phelps had a fair and perfect title upon the record. The judgment under which the plaintiff claims was also mat [243] ter of record, and he had become a purchaser of the premises at the sale by the sheriff under the executions, several months before the defendant Jamison took his conveyance from Phelps. This was notice to any purchaser from Phelps, of the plaintiff’s claim upon the land, sufficient to put him upon inquiry. The law charges every purchaser with actual notice of every fact in regard to which he is put upon inquiry. (Jackson v. Caldwell, 1 Cowen, 622.) The defendants knew, or were bound to know, that Phelps derived his title, so far as the sheriff’s deed to him was concerned, under a power not coupled with an interest. And having notice of the plaintiff’s claim, they were bound to inquire whether the power had not been extinguished before the sheriff’s conveyance to Phelps. Jamison, therefore, is in no better situation than his grantor, Phelps, would be, were he defending against the plaintiff’s title. And it is scarcely pretended that Phelps could successfully resist the plaintiff’s title, if the proof of the redemption by him is competent against his sheriff’s deed. As to him, it is manifest that the sheriff’s deed is a nullity; obtained in fraud of the plaintiff’s rights under his judgment. The statute is explicit, that upon redemption the sale and certificate shall be null and void. (2 R. S. 371, § 49.) It is a general rule that a purchaser under a power, purchases at his peril. And this has been repeatedly held to apply to titles acquired under sheriffs’ sales upon execution, and to sales by the comptroller, for nonpayment of taxes. (Jackson v. Anderson, 4 Wend. 474. Wood v. Colvin, 2 Hill, 566, and cases there cited.) In the latter case, it was expressly held that a bona fide assignee of the sheriff’s certificate, from one who purchased with knowledge that the judgment had been paid, acquired no right or title to the premises as against a purchaser under a junior unsatisfied judgment. That seems to be decisive of this case. It is clear, upon general principles, that there must be a subsisting power in the sheriff at the time of the conveyance, or he can confer no title. There can be no doubt that the fact of redemption, or the payment of the judgment, may be proved by parol, to defeat a sheriff’s deed. It is matter in pais, and very often could [244] be established in no other way. (Jackson v. Caldwell, 1 Cowen, 640.) In Jackson v. Roberts' Ex'rs, (11 Wend. 422,) it was conceded that the fact that the execution was satisfied before the sale of the premises in question, might have been established by proof aliunde, to defeat the sheriff’s deed. And so in regard to the payment of taxes, to defeat a comptroller’s deed. (Jackson v. Morse, 18 John. 441.) But it is urged that the evidence that Phelps redeemed from Hurd, and that the certificate was not assigned to him by Hurd, as recited in the sheriff’s deed, contradicted the deed in material parts, and was inadmissible. It has been held that the recitals in a sheriff’s deed, as to the manner in which he executed his powers, as for instance the number of executions upon which the premises had been sold, can not be contradicted by showing that the sale was only upon one execution, or that a portion of the premises conveyed were reserved by the sheriff at the sale, and the like. (Jackson v. Roberts' Ex'rs, 11 Wend. 422, and cases there cited.) But it has never been held, and I think never will be, that the recitals in a sheriff’s deed, of the transactions of third persons in transferring the certificate, were conclusive and could not be contradicted. Such recitals may be, and probably are, prima facie evidence of the assignment, but they can be nothing more, and they are liable to be disproved, the same as any other prima facie evidence. The sheriff was no party to the assignment, and could not conclude any one by any statement he might make in regard to it. It was wholly unnecessary for the plaintiff to produce the certificate, or the receipt, to enable him to prove the payment of the money by Phelps to redeem from the Cowan judgment. Those papers were in Phelps’ possession, and the fact existed, and might be proved independent of the papers. The receipt itself was but evidence of the fact, and would not preclude the introduction of other evidence, even between the parties to the transaction. (Cowen &p Hill's Notes, 547, 548,1211.) The defendant Williams was, in my judgment, properly ex* eluded .as a witness for his co-defendant. It must be perfectly [245] obvious that no separate judgment in such a case could be rendered in favor of one defendant and against the other. Jamison claimed to hold the legal title, and Williams was in possession under a contract to purchase from him. The possession of Williams, for all substantial purposes, was that of Jamison. [Monroe General Term, December 2, 1851. A verdict and judgment which should give the plaintiff the possession as against Williams, and the defendant Jamison the possession as against the plaintiff, would be absurd. Although against Williams in form, practically it would be in his favor and effectually establish his rights, which all depended upon Jamison’s title. It was impossible for the evidence of Williams to benefit Jamison without its operating in his own favor. I am clearly of the opinion the defendants’ title to the premises was null and void, as against the plaintiff’s title ; and that there was no error in the ruling upon the trial. The judgment of the special term must therefore be affirmed. Welles, Selden and Johnson, Justices.]