Jackson v. Middleton

By the Court, J. F. Barnard, J. It was decided by this court, in Moore v. Littel, (40 Barb. 488,) that the children of John Jackson, during his lifetime, had an alienable contingent estate in remainder in the lands in question in this action; that such children, at the death of their father, took a fee simple as purchasers under the deed from Samuel Jackson to John Jackson. The court at circuit fell into an error in supposing that an estate in expectancy, which could be aliened, might also be sold on execution. The statute is not broad enough to include future estates in expectancy among those estates or interests in land' which may be so sold. The statute in reference to the 1-ien of judgments and lands sold thereunder by the sheriff, charges such judgments only on lands, tenements, real estate and.chattels real, and directs the sale of only such estates by the sheriff. .The sheriff’s deed, therefore, conveyed no interest which continued after the death of John Jackson. The judgment should be reversed, and anew trial granted, costs to abide the event, (a) SmtgJmn, Zott, /. J?. Barnard and Gilbert, Justices.] Footnotes [(a)] This action was tried a second time, before Gilbebt, J. at the Kings circuit, October 10,1866, and judgment was rendered, declaring that the plaintiff was seised of the lots in question, discharged of any right, title or interest in the defendant. This judgment was affirmed at the general term of the court, in the second district, in February, 1867. No appeal to the Court of Appeals was taken.