Tifft v. Barton

By the Court, Bronson, Ch. J. The statute in relation to executions against property, provides that personal property shall be offered for sale in such lots and parcels as shall be calculated to bring the highest price. (2 R. S. 367, § 23.) I do not see that this statute was violated in the sale which was made to the plaintiff under the judgment and execution in favor of Sykes & Sheldon. Although there were many kinds and parcels of property, the sale was made subject to the mortgage of Sprague and Joseph Tifft; and there was a necessity for selling the whole in one parcel. If it had been put up in several lots, it would not have been likely to bring any thing ; for unless one man purchased the whole, he would not acquire the equity of redemption; and one of several purchasers would have no remedy at law, if he would in equity, to compel other purchasers to contribute towards the satisfaction of the mort [174] gage debt. The purchaser of a part of the property would have no right to redeem pro tanto. The mortgagees could not be compelled to receive a part of their debt, and relinquish fne lien as to a part of the property. When the sheriff sells personal property subject to a mortgage, the proper course is to sell the whole in one parcel, as was done in this instance. The same statute provides that no personal property shall be exposed for sale, unless the same be present) and within the view of those attending the sale. This is in affirmance of the common law. (Sheldon v. Soper, 14 John. 352; Cresson v. Stout, 17 id. 116.) It was held in Bakewell v. Ellsworth, (6 Hill, 484,) that the interest of a pledgor cannot be sold on execution unless the goods be present and within the view of those attending the sale. That was a sale of a single article, which was neither present, nor did the sheriff know where it was. In this case it was necessary, as we have already seen, to sell the whole of the property in one parcel. A part of it was in the house; some was in the barn, and some was in the fields and elsewhere on the farm. The whole could not be gathered, so as to be brought into view at one time, without incurring great and useless expense. The sale was made on the farm, and some of the property was actually present and in view. If the officer had previously declared what property in particular was to be sold, and had pointed it out to the persons in attendance, I think the whole should be deemed present and in view, within the meaning of the statute. It does not appear from the case that enough was done by the officer to make this a good sale; but I do not find that this question was made on the trial. But there is a fatal objection to the recovery. As to a part of the goods for which damages have been given by the jury, the plaintiff makes title by a bill of sale from her father, without any change of possession, and without showing that any consideration was paid. All the cases agree that such a sale is fraudulent and void as against the creditors of the vendor; and there is nothing to be left to the jury. The law declares the sale void. It is only on proof of a good consideration that [175] the cause goes to the jury on the question of fraud in fact. I do not speak of the statute against fraudulent sales, for that says nothing about consideration, but of the law as it has been settled by the court of last resort.(a) Neither the recital of a consideration in the bill of sale, nor what the parties said on that subject at the time the instrument was executed, was evidence against creditors. They are strangers to the transaction. There was not a particle of proof that the plaintiff paid any consideration for the property; and the jury should have been instructed that the sale was a fraud upon creditors, and, as against them, utterly void. New trial granted. Footnotes [(a)] Hanford v. Artcher, (4 Hill, 271.)