Jackson ex dem. Hunter v. Page

By the Court, Sutherland, J. The principal questions in this case are, 1. As to an alleged variance between the execution and the judgment. 2. As,to the form of the execution, and the authority of the clerk to renew it. The judgment as certified in the transcript was for f53,674. The execution recites the judgment as having been rendered for $54,17¿. It states correctly the names of the parties, the justice before whom the judgment was obtained, the day when rendered, and the return and filing of the transcript. The only variance is in the amount. It arose undoubtedly from the omission of the justice to include in the costs the clerk’s fee of for issuing execution, which the clerk added when he made out the writ. This appears from a memorandum at the bottom of the execution. It sufficiently appears that the execution given in evidence was infact issued upon the judgment in question, and that the sale was made under that judgment and execution. The object in proving the judgment and execution was to shew a competent authority for the sheriff to sell; and the rights of a purchaser at such sale ought not to be affected by a slight variance between the execution and the judgment, which it would be a matter of course to amend upon application to the court, if the execution had issued from a court of record The variance in no respect affects the force or validity of the [589] execution, or the sale under it, if it be admitted that it issued upon the judgment, and conforms to it in all essential particlars. In Jackson v. Pratt, (10 Johns. R. 386,) there was a difference of one shilling between the sum mentioned in the execution and the loto attingens clause at the end of the record ; this was held to be immaterial. So in Jackson v. Davis, (18 Johns. R. 10,) it appeared from the execution that the judgment on which it issued was docketed on the 2d of May; whereas the exemplification of the record given in evidence shewed that the judgment was docketed on the 22d of May. It was held that the irregularity in thefi.fa. did not invalidate the title derived under the sheriff’s sale. The same doctrine was distinctly asserted in Jackson v. Streeter, (5 Cowen, 529.) 2. The execution, in point of form, appears to correspond substantially with the directions of the statute, (vide 10th sect, of the act of April 10th, 1818, “to extend the jurisdiction of justices of the peace,” and the 3d section of the act of 21st April, 1818, modifying the preceding act.) The only question upon this point is as to the authority of the clerk to keep the execution alive by renewing it. The 12th section of the act of April 10th, 1818, page 81, provides, “ That the form of proceedings shall be in all respects the same as under the act for the recovery of debts to the value of $25; and all the provisions of the said act, and the amendments thereto, are declared to apply to this act, except as otherwise directed. The 11th section of the $25 act, (1 R. L. 393,) provides, “ That if no goods or chattels can be found, or not sufficient to satisfy the execution, the party recovering the judgment may, from time to time, renew such execution, or have further execution against the goods and chattels,” &c.,of the defendant. Unless this provision applies to the execution to be issued by the clerk, there is no authority, as I perceive, for the issuing of a second execution in any case upon a justice’s judgment, where the transcript is filed in the court of common pleas.-- This is the only statutory provision upon the subject. The court of common pleas has no jurisdiction or authority to award a second execution, or in any manner to control or interfere with the execution issued by their clerk [590] upon justices’ judgments. The justice before whom the judgment was obtained, although the execution is tested in his name, has no control over it. It is executed by the sheriff, not by a constable, and is returnable in the court of corn-common pleas, and not before the justice. It is an extraordináry statutory proceeding. The legislature could not have intended to confine the plaintiff in such a judgment to a single execution, where nothing or only a part of the debt was collected. They" must have supposed that the broad and comprehensive phraseology of the 12th section conferred the requisite authority upon this subject upon somebody. It deqlares that all the provisions of the $25 act and the amendments thereto shall apply to this act, &c. Among those provisions is that for the renewing of and issuing further executions. The eleventh section says, in general terms, that the party recovering judgment may from time to time renew such execution, or have further execution, &c. It does not, in terms, declare how the execution shall be renewed, or by whom the new one shall be issued. But, upon general principles, these acts must be done by the same authority which issued the first execution, and such has been the construction given to that section and the uniform practice under it. (Cowen’s Treat. 649.) I am of opinion, therefore, that the clerk who issues an execution in such cases has authority to renew it or to issue further execution, and that the objection to the plaintiff’s title on that ground is invalid. 3. The variance between the description of the premises in the sheriff’s deed and in the exemplification of the certificate cannot prejudice the plaintiff. The evidence renders it probable that the certificate on file corresponds precisely with the 'deed, and that the error is in the exemplification; but if it were otherwise, it would not-affect the title of the purchaser. The evidence leaves no doubt that the deed contains a correct description of the premises sold; and in Jackson, ex dem. Hooker v. Young, (5 Cowen, 269,) it was held that the entire omission of the sheriff to file a certificate would not prejudice the purchaser. The statute is directory to the sheriff, but the certificate is not necessary to the title of the purchaser. [591] 4. The loss of the deed from Marsden to Comstock was sufficiently proved to admit parol evidence of its contents; and the deed having been once delivered to the grantee and accepted by him, its re-delivery to the grantor did not revest the legal title in him. (Jackson v. Chase, 2 Johns. R. 84. 2 H. Black. 263. 3 T. R. 156. 1 Johns. Ch. R. 240,) 5. It was clearly proved that the defendant had express notice of the deed from Marsden to Comstock, prior to the conveyance to Marsden to him of the 25th March, 1826. He cannot avail himself, therefore, of the neglect or omission to record the first deed. On the whole case the plaintiff is entitled to judgment.