Swan v. Saddlemire & Wood

By the Court, Sutherland, J. The nonsuit mnst have been granted, either upon the ground of the variance between the judgment and execution, or else upon the general ground that the sale was a perfect nullity, by which the plaintiff could not have been injured, and for which therefore no action would lie; for, independently of these considerations, the evidence certainly was sufficient to go to the jury. It was urged on the argument, on the part of the defendants, that there was no evidence to shew that the plaintiff had any interest in the land attempted to be sold. The evidence upon this subject is, that Saddlemire, on the 3d March, 1824, [679] conveyed the premises to one Vrooman by a quit claim deed for the consideration of $400, and that Vrooman, in November following, conveyed them also by a quit claim deed to the plaintiff for the consideration of $300. It is not expressly proved that either Saddlemire or Vrooman, or the plaintiff, was in the actual possession of the farm, or that Saddlemire ever had any title to it. It is not however for the defendants, after having sold this farm as the property of Saddlemire, to deny that he ever had an interest in it; and as between these parties, and under the circumstances of this case, the legal intendment, I think, is, that a valuable and beneficial interest passed under these conveyances, and that the parties respectively took possession under them. The variance between the execution and the judgment did not affect the validity of the sale under it. Such a variance, where the execution issues from a court of record, is amendable at any time, as well after as before the sale, 2 T. R. 727, 5 Johns. R. 100, 2 Dunlap, 774, and cases there cited; and cannot be taken advantage of on a trial for a recovery of land sold by virtue of the execution. 4 Wendell, 462. In Jackson, ex dem. Hunter v. Page, 4 Wendell, 585, this doctrine was applied to an execution issued upon a justice’s judgment) the transcript of which had been filed in the county clerk’s office: precisely in this respect like the case at bar. There was a variance in that case of ,TW between the judgment and execution under which the plaintiff derived title. We held that the title of the purchaser was not affected by it. I delivered the opinion of the court; and it is there said that it sufficient-13" appeared that the execution given in evidence was in fact 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 execution or sale under it, if it be admitted that it issued upon the judg [680] ment, and conforms to it in all essential particulars. The actua) amendment is of no importance. The variance will be disregarded, no matter what court the process issues from, if, according to established practice of this court, its process would be amendable under similar circumstances. 10 Johns. R. 386. 18 id. 10. Jackson v. Streeter, 5 Cowen, 529. The variance in this case therefore did not authorize the nonsuit. But if in ordinary cases this objection could be taken by a defendant in a hostile execution, it could not be taken by these defendants, both of whom must be considered as actors in the issuing of the execution in this case. It is not necessary, in order to support this action, to maintain that the purchaser under the sale complained of acquired a good title to the property. In this special action on the case, if it appear that the unlawful acts of the defendant occasioned trouble, inconvenience, or expense to the plaintiff, the action is sustained, and the amount of damages must be determined by the jury. 1 Chitty’s Pl. 133, 4. Now a man’s property cannot be sold under color of legal process, without subjecting him to some inconvenience or expense, and if it be real estate, without, to a greater or less extent, throwing a cloud upon his title. This is damage per se, and the law ought so to regard it, when it is produced by the wilful and fraudulent act of a tort-feasor. The case of Hunt v. Dowman, Croke Jac. 478, shews that actual specific damage need not, in all cases, be shewn, in order to maintain this action, but t hat the law will in some cases imply damage without its being proved. That was an action on the case, by a reversioner in fee against the lessee for years, for disturbing him, when he came to the house to see if any waste was committed therein, or any defect in the repairs, as that he could not enter and examine the waste, if any. The plaintiff recovered, and it was moved in arrest of judgment, 1. That it was not shewn that any waste had been committed, and of course it did not appear that plaintiff had sustained any damage by being prevented from examining the premises; but the whole court held that the action, though of the first impression, was maintainable ; that the reversioner having a right to enter and view the premises, a disturbance in his entrance and view was an [681] injury for which the law gave him a remedy by this action, Phillybrown v. Rylan d, 1 Strange, 624. So an action one case will lie for tearing the seal off a deed, without shewing that it was the seal of the grantor, or that the deed thereby lost its force. Ash v. Burdnel, Croke Jac. 255. Comyn’s Dig. tit. Action on the Case for Misfeasance, a. 6. Godb. 200. 7 Mass. R. 135. Yates v. Joyce, 11 Johns. R. 140. In Mc-Guinty v. Herrick, 5 Wendell, 243, it was held, that trespass would lie against a party or magistrate, who should wantonly and intentionally take out, or issue process, upon apaid judgment; that the justice in such a case would have a jurisdiction of the process; that an execution upon a paid judgment was not a regular process. 2 Johns. Cas. 49. 7 Cowen, 249. And in Lewis v. Palmer, 6 Wendell, 368, a justice who issued a second execution, after the first was satisfied, was held to be a trespasser, though the second execution was issued through the false representation of the plaintiff that the first was lost. I am strongly inclined to the opinion that an execution issued upon a judgment which has been paid and satisfied, is to be considered absolutely void, and not voidable, and that the purchaser under such execution would acquire no title. Woodcock v. Bennett, 1 Cowen, 711. 1 Johns. Cas. 154. 15 Johns. R. 443. 16 id. 571. 9 Mass. R. 142. 16 id. 63. 18 Johns. R. 441. Jackson v. Cadwell, 1 Cowen, 622, and authorities there cited. Jackson v. Anderson, 4 Wendell, 474. It is a general rule that a purchaser under a power, purchases at his peril. If there was no subsisting power or authority to sell, no title is acquired. But I abstain from a definitive opinion upon this point, because I do not deem it necessary to the decision of this motion; and it may hereafter directly arise between other parties connected with this transaction. Nonsuit set aside, and new trial granted. [ The remainder of the cases of May term in next volume.]