Bennett v. Bagley

Hardin, J.: "We think the conclusions of fact reached by the referee were sustained by the evidence. The judgment debtor, by his agreement that the engine and machinery be sold as personal property, which agreement was acted upon, manifestly influenced the judgment creditor, in bidding upon the real estate, thus divested of the machinery. By the agreement, and the reliance placed upon it by the judgmeut creditor, the judgment debtor became estopped from claiming that the machinery was a part of the real estate as against the judgment creditor. (Sisson v. Hibbard, 75 N. Y., 542.) When the debtor subsequently allowed a judgment to be taken against him, upon which the redemption was had of the real estate, he had parted with the right to insist upon the machinery being treated and held as real estate. (Jones v. Graham, 77 N. Y., 628.) The redeeming creditor therefore acquired no rights or interests in the machinery, which had thus been severed from the real estate. The redeeming creditor acquired no greater rights than he would have, had he sold the interest upon execution, which Paine had in the real estate, after the agreement and sale of the personal property and its severance from the freehold. (Miller v. Lewis, 4 N. Y., 554.) Section Í461 of the Code of Civil Procedure has no application to the case before us, as it was not in force at the time the agreement was made ; nor do we think the subsequent creditor, with a judgment subsequent to the agreement as to how the sale should be conducted, can question the regularity of the sale upon the ground that the property was sold in bulk, instead of in parcels. [411] It might be conceded that the debtor, upon motion, if he had not made the agreement, could have had a resale, and still the subsequent and redeeming creditor could not avail in this action of the supposed objection to the regularity of the sale. (Smith v. McGowan, 3 Barb., 405; Neilson v. Neilson, 5 Id., 565.) . We are referred to Tugwell v. Bussing (48 How. Pr., 90), where Taxcott, J., states the general rule that it is the duty of a sheriff to sell in parcels; and that a person who sustains damages by its violation may have an action, but we find nothing in that case which trenches upon the conclusion stated above. It was held in Cunningham v. Cassidy (17 N. Y., 276), that a sale made in gross is irregular and voidable at the instance of the party aggrieved, but it is not void. We find nothing in Mandeville v. Reynolds (68 N. Y., 528), inconsistent with the views already stated. That was a case where an action was brought upon a judgment, and it was held to be competent to show, that a satisfaction thereof had been fraudulently obtained and entered of record. We have examined the exceptions in the rulings made by the referee. We are not able to say that any error was committed which was prejudicial to the plaintiff, upon the main questions which have been determined against the plaintiff. We must therefore affirm the referee’s report and the judgment entered thereon. Taxcott, P. J., and Smith, J., concurred. Judgment affirmed.