Jackson ex dem. Anderson v. Anderson

By the Court, Sutherland, J. The execution in favor of Daniel against Samuel Anderson, which was objected to by the defendant, corresponded with the judgment in all respects except the amount of the costs. The costs in the judgment were $14,44, and in the execution they were stated at $17,75. The judgment was entered up, upon bond and warrant of attorney, and the variance was occasioned undoubtedly by the costs of the defendant having been added to the plaintiff’s cost- and inserted in the execution, whereas the direction t<5 collect them should only have been endorsed on the back of'the writ. That the execution was in-sued upon this judgment there can be. no question; and if any doubt could exist upon the bare production of the record and the execution, it is entirely removed by the. bill in chancery introduced and made evidence by the defendant, in which the judgment andl execution are set forth, and in which it is expressly alleged that the execution was issued on the said judgment. The validity of the execution was not affected by the variance. , It was amendable at any time, as well after as before the safe. (Bissell v. Kip, 5 Johns. Rep. — 479 — 89. 2 Dunlap, 774, and cases there cited.) The execution therefore was properly received in evidence. 2. The next inquiry is as to the validity of the title acquired by Samuel T. Conkey, under the sale upon this execution. ,It is impeached upon two grounds: 1. Because the judgment on which the execution was issued had been paid and satisfied before the sale; and 2. Because Conkey, the purchaser, was at the time of the purchase under-jailer to the sheriff. It is not denied that the judgment was satisfied before the sale, (except as to the sheriffs fees on the execution,) by a settlement between the parties, and by a conveyance in fee from the defendant to the plaintiff in the execution, of a part of the premises on which it had been levied; nor is it denied that the sheriff and Conkey, the purchaser, both had notice of the satisfaction of the judgment before the sale took place. The evidence upon this subject is principally contained in a bill in chancery filed by the lessor of the plaintiff against the sheriff and Conkey, in which the facts are distinctly stated. One object of the bill was to restrain Conkey from issuing a writ of possession upon a judgment in ejectment which he had recovered, for the premises purchased by him. The bill states, in terms, that the sheriff had express information of the settlement and discharge of the judgment and execution; that he sold the premises without the knowledge or direction of the plaintiff; and that Conkey, at the time of the sale and conveyance to him, knew that the judgment and execution were fully paid, satisfied and discharged, and that the sheriff had no order and directions from the plaintiff or his attorney to sell the premises. It was an injunction bill, and duly sworn to by the plaintiff. It was introduced by the defendant, and certainly was competent evidence for him. The sheriff had no right to sell, for the purpose of collecting his fees, after due notice of the settlement and discharge of the judgment. The sheriff has no interest in the judgment, which will authorize him to interfere with or control any settlement or arrangement which the parties may think proper to make. His fees are no part of the judgment. They are but an incident to it: and if the judgment itself is satisfied or discharged, he — 480 — must look to the plaintiff and his attorney for his fees. He cannot collect them from the defendant by a sals of his property. Ah execution may at any time be countermanded by the' attorney who issued it, and the sheriff is bound to obey jj¡g instructions and suspend proceedings upon the execution Whenever he is directed so to do, unless it be a case of collusion between the parties for" the obvious" purpose of defrauding the sheriff out of the fees, the plaintiff and his attorney both being insolvent or irresponsible. The assent of Samuel Anderson, the defendant in the execution and also the defendant in this suit, to the sale, admitting the evidente’of s.uch assent to be ‘ competent, does not, 1 thinkj vary its legal effect arid operation. It may be remarked, in the first place, that it is not pretended that Ire consented to the sale in general terms. The extent of his assent Was, that the farm might be bid off by the -agent of ■Daniel Anderson. It Was not purchased "by Daniel Anderson, nor fol" his benefit; and the defendant, I apprehend, is not estopped from raising any legal objection to the title of any other purchaser at such sale. The fact that Daniel Anderson 'subsequently acquired a title under the purchaser, Will not enable him to set up the special consent of Samuel ' to the sale, by way of estoppel against him-. It may well be questioned whether a sale made upon a judgment and execution which have beeh satisfied, though with the full assent of the plaintiff and defendant, if the purchaser have knowledge of all the facts, is not an absolute nullity, leaving the title- to the property precisely as it stood before the sále. The consent of parties will -not revive an extinguished judgment, or give life and efficacy to an execution which has been satisfied. It is -not necessary-, however, to determine what would he the effect of such a transaction. It does not appear that Samuel Anderson, the defendant, whs present at the sale; and he consented, at most, that Daniel Anderson might bid in the premises. Conkey, therefore, acquired no title by his purchase at the sheriff’s .sale, ¡having purchased with full Imbwledge that the judgment and 'execution had been previously satisfied and discharged; ®ind the defendant is nbt «stopped from Contesting his title. (Sherman v. Boyce, — 481 — 15 Johns. R. 443. Reed v. Pruyn & Staats, 7 id. 426. Jackson v. Cadwell, 1 Cowen, 622, and the cases there cited by the counsel and the court, Jackson v. Bowen & Neff, 7 Cowen, 1. 1 Johns. Cas. 154. 16 Johns. R. 571. 9 Mass. R. 142. 16 id. 63.) ' 2. Samuel T. Conkey was assistant jailer under David S. Conkey, his brother, who was under sheriff and jailer. The 16th section of the act, concerning judgments and executions, (1 R. L. 506,) provides that it shall not be lawful for any sheriff, or other officer to whom any execution shall be directed, or any of their deputies, or any person for them or either of them, to purchase any goods or chattels, lands or tenements, at any sale, by virtue of any execution; and all purchases so made by them are declared to be void. An under jailer or turnkey, I am inclined to think, is not a deputy within the meaning of this act. He is a mere servant of the jailer, and can have no official control or agency in the execution of any process directed to the sheriff. 3. If Samuel T. Conkey acquired no title to the premises in question under the sheriff’s sale and deed of December 16th, 1819, then the purchasers under the judgments subsequently obtained against him acquired no title or interest by virtue of their purchases. Conkey never was in possession of the premises except for a few days, and that was in 1822. Samuel Anderson was in possession when Conkey purchased, and has remained in possession ever since. The judgment of Chapin and others against Conkey was obtained in June, 1823, and that of Camp against Conkey in May, 1824. Hiram Johnson was the purchaser under the first judgment and Jacob A. Barker under the last; and they have respectively conveyed all their title and interest to the lessor of the plaintiff. A purchaser at sheriff’s sale acquires only the interest of the defendant in the execution. If he has no title, none passes by the sale and the deed of the sheriff. The act concerning judgments and executions, (1 R. L. 504, s. 11,) gives to bona fide purchasers of land upon execution, who shall be evicted on account of any irregularity in the proceedings, or want of title in the person against whom such execution issued, a remedy against — 482 — the plaintiff in the execution, who is entitled to further judgment and execution against the defendant therein. Under the registry act and, the statute against fraudulent conveyances, the bona fide purchaser from a fraudulent grantee, or a grantee with notice, is, under certain circumstances, protected. (Roberts & Boyd v. Anderson, 3 Johns. Ch. 371. Roberts on Fraud. Con. 382, et seq.) But a purchaser under a power purchases at his peril; if there was no subsisting power or authority to sell, no title is acquired. It has already been remarked that Conkey never 'was in possession except for a few days; neither were Johnson and Barker, or either of them, ever in possession. The defendant has been in possession since 1822. Johnson and Barker purchased as the agents of Chapin and Camp, the plaintiffs in the execution; and Chapin and Camp both testify that they knew at the time of the sale that Samuel Anderson was in possession of the land claiming title. Johnson and Barker were also the mere agents of Chapin and Camp in conveying the premises to the lessor. Whether the sheriff’s deeds to Johnson and Barker were void on account of the adverse possession of the premises by Samuel Anderson at the time of the sale or not, it is not necessary to determine; for, admitting them to be valid, if the views which have already been expressed are sound, they conveyed no interest to the grantees. The conveyances from Johnson and Barker to the lessor would undoubtedly have been void on account of the adverse holding of Samuel Anderson at the time, if it had not appeared, as it does distinctly in the case, that Samuel Anderson was present when the conveyances were executed, and made no objections to the sale, but joined in the securities given by Daniel Anderson for the purchase money. He is estopped by these acts from saying that the conveyances were void by reason of his adverse possession; but his declarations at that time, or subsequently, are inadmissible for the purpose of-shewing title out of himself or in the lessor. (6 Johns. R. 22. 7 id. 186. 16 id. 302, 6 Johns. Ch. R. 166. 6 Cowen, 751.) His declaration to the witness St. John, “ that Daniel Anderson had now got a good title for the farm,” — 483 — was admissible on that ground. There was no pretence or evidence of a tenancy on the part of Samuel under Daniel, in support of which these declarations could be applied. He undoubtedly supposed that Daniel had acquired a good title, but if he had not in fact, the admissions or opinions of Samuel, however frequently made or expressed, would not confer it. The evidence of St. John upon this point ought not to have been received. 4. The only remaining inquiry is, whether the title of the lessor to the 96 acres conveyed to him by the defendant on the 29th April, 1819, was extinguished by the release or quit claim deed for the same premises subsequently given by him to the defendant. That a quit claim deed was given to the defendant is clearly established by the testimony of several witnesses. It is also shewn that the deed was subsequently returned by the defendant to the lessor; but the return or destruction of the deed would not revest the grantor with the title. A title can be transferred only by deed. (2 Johns. R. 84. 9 id. 55. 12 id. 73, 488, 355. 2 H. Bl. 260. 4 Cruise, 497. 6 East, 86.) It is highly probable that there was no good or valuable consideration for the deed, and that in a court of equity, upon a disclosure of all the circumstances attending the transaction, the defendant would be compelled to re-convey the 96 acres to the lessor. But enough does not appear in this case to enable us to pronounce the deed void, and the legal title which it conveyed to the defendant was never re-conveyed to the lessor. Upon the whole case, therefore, the defendant is entitled to judgment.