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Jackson, ex dem. Noah, against Dickenson and Thompson
Yates, J. delivered the opinion of court. The rule that a lis pendens in the court of chancery, (1 Johns. Chan.
Rep. 576.) which must begin from the service of the subpoena after the bill is filed, is considered notice to a subsequent purchaser, so as to affect and bind his interest, cannot now be controverted; but according to the facts disclosed by the testimony in this case, it does not appear that the suit in chancery had been instituted when the sale took place. 316 The deed, although subsequently executed by the sheriff, to t[le ]essor 0f the plaintiff for the premises in question, cannot then be illegal and inoperative, on the ground of notice for the purchase was made on the first of March, and the filing of the bill, (without noticing the time of issuing the subpoena,) was not until the 10th of March.
The subsequent delivery of the deed, being mere matter of form, must have relation back to the time of purchase at the sheriff’s sale. When the subpoena issued, does not appear. In Jackson v. Raymond, (1 Johns.
Cas. 85.) it is stated, in the opinion delivered by one of the judges, as a general principle, that whenever it is intended to be shown, that nothing passed by a grant, by reason that at the time there was a possession in another adverse to the grantor, the time to which the grant is to relate, is the time when the bargain or contract for the sale and purchase of the land was finally concluded between the grantor and grantee; and, consequently, any intermediate adverse possession, before the execution of the conveyance, which is the technical consummation of evidence of grant, can never affect it.
If this principle is correct, it applies with equal, or greater force, to the commencement of a suit in chancery, between the time of a sheriff’s sale, when the purchase is actually made, and the giving of the deed by him. In such case, the delay in not delivering the deed is an omission of duty in the public officer, and his loches ought not to prejudice the rights of the party. That the lessor of the plaintiff was the purchaser, cannot now be questioned.
There was sufficient testimony to authorize the jury to infer it. Ferris, the sheriff, on being called a second time, stated, that, on reflection, he thought that Hart and Noah came to him on the day of sale, and requested that the deed should be given to Noah. If, then, Noah was a bona fide purchaser at the sheriff’s sale, before the existence of the suit in chancery, or there was a lis pendens, it follows, that to make the decree conclusive on him, he ought to have been made a party.
Not being a party, so far as relates to his title, the rights of the mortgagee, under the mortgage sale, notwithstanding the decree, remained open for discussion,(and the purchaser at the sheriff’s sale 317 retained the right of contesting its, validity at law, without tendering the amount of principal and interest due on the mortgage.
If, on the trial, it should be made to appear that the consideration for which the mortgage has been given is usurious, it is sufficient to protect the lessor in claiming under the sheriff’s deed.
The question of usury was therefore important, in settling the rights of the parties, and although the testimony on that part of the case might, perhaps, warrant the verdict, as it now appears; yet, from the facts stated by the jurors, as to what took place in delivering in their verdict, it would seem not to have been as entered by the clerk at the circuit.
What the jurors have deposed must be noticed by the court, because their affidavits are not as to what transpired while deliberating on their verdict, but as to what took place in open court in returning their verdict, and shows that the clerk made a mistake in entering, or the court in directing, a different verdict. The information afforded by the affidavits of the jurors, is not to impeach, but to support the verdict really given by them.
This mistake, then, is manifest; and from the affidavits of Pratt and Dickinson, there is reason to believe that the defendants were surprised with testimony on the trial; and it being an action of ejectment, in which the rule applicable to other cases, as to new trials, is not so rigidly enforced, it is the opinion of the court, that a new trial ought to be granted. New trial granted.