Crowell v. Meconkey

Coulter, J., (after stating the facts as to the sale and the act of Assembly, and their respective dates). — It was utterly impossible that the existence of the act could have been known in many parts of the state in that time. And its knowledge through the ordinary mode of publication of the laws, could not have been known for months, and it does not appear that there was any extraordinary mode adopted of promulgating this law. It may be presumed that cases exist when 'sales were made after the passage of the act, and the deeds acknowledged before the existence of the act was known; at least, it seems impossible that the- act could have been officially known to the sheriff in this case, or that by any ordinary mode of action he had a chance of knowing its existence at- the time of sale. Before stating the construction which the court give to the act of 16th of July, 1842, I beg leave to say, that all persons are presumed to know the law of the country who claim its protection, seek its aid, or abide its judgment, whether it relates to contracts, to property, or to crime. And ignorance or mistake cannot be alleged as an excuse for omission, or as a shield to save when it is broken. But this presumption is founded on the basis, that all people have an opportunity to know what the law is, either by examining for themselves or by consulting those whose business it is to be professionally informed on the subject. The lawgiver who establishes a rule of action or of contract in all civilized countries, has been held to the necessity of making that law public, so that its enactments might be known before obedience to its provisions was exacted. There is'one remarkable and distinguished instance recorded, where it was sought in form, at least, to -comply with this universal, precept of natural justice, and yet not give to the people the information necessary to save and secure them.- The example may be found in his conduct who had his laws written and elevated s,o high that no eye could reach or scan them. Such enactments have all the evils of those retroactive laws which operate upon and impair, or alter contracts entered into upon the full knowledge and faith of the known laws at the time, and which therefore were interwoven [175] with the contract itself, bnt which are* required to be judicially determined by a rule not promulgated at the time the contracts were made: an exercise of authority, which example cannot render respectable, nor power make just. But apart from these considerations, the judgment of the court proceeds, on the ground that the act of 16th of July, 1842, was only directory as it regarded the sale, and its non-observance amounted merely to an irregularity, for which the sheriff might be subject to an action, if the defendant in the execution, or those who represent him, suffered any injury or damage in consequence of it, provided the sheriff knew or might have known the existence of the act, and disregarded its provisions. But this irregularity may be waived by the acts of the defendant in the execution, or those who represented him. The proper time 'to have made the objection, was at the acknowledgment of the sheriff’s deedfor it appears the existence of the law was then known. The irregularity-in this case cannot be assimilated to the want of an inquisition, for the purpose of ascertaining whether the yearly rents and profits of the land, beyond all reprises, will pay the debt, &e., in seven years. Because, under such circumstances, the writ of venditioni exponas Would be void, the officer having no power to issue it, and it could therefore confer no authority on the sheriff to make the sale. But in this case the writ was good, and the sheriff had authority to make the sale; and that was sufficient to protect the purchaser, in the same manner and for the same reason that he is protected in all other cases of irregularity or error -in the process or judgment. In addition to this, however, the party waived the defect or irregularity by his acts. . . The plaintiff was present at the sale, and made no objection what-' ever; and at the next court appeared and filed his affidavit in conjunction with the defendant in'the execution, of the passage and existence of the act of 16th July, 1842, and that no inquest had been held for the purpose of appraising another tract of land, sold as the property of. the defendant in the execution on the same venditioni exponas, and stating also, that the last-mentioned tract had sold for too small a price, and, thereupon, moved the court to set the sale of that tract aside, V||gieh was done; but the sale of the land covered by this action of ejectment was confirmed without objection; the purchase-money paid, and a deed made to the -purchaser. The plaintiff is, or was trustee for the judgment creditors, who received the purchase-money of this land, but hp now seeks to strip himself of that character and stand as the naked [176] trustee of those who received nothing. But he cannot be allowed to blow hot and cold. He made his election as trustee of all the creditors-to let the sale stand,, and he must abide by that election. Innocent purchasers cannot, and must mot be made the sport of such tricks; even if the sale had been void, the reception of the purchase-money would have made it valid; Adlum v. Yard, 1 Rawle, 171; Furness v. Ewing, 2 Barr, 479. .It is true he did not receive the money himself. -But those for whom .he acted-and whom he-represented did receive- it; and therefore the spirit of these eases reach him. But it would be of no moment even if no adjudicated case covered the exact circumstances. For the law is a science and not merely an art. Its principles expand as new developments require their application, — not altered but extended in their sphere of usefulness. The principles themselves being founded on elevated morals and pure good faith, are as extensive and vigorous as the principles of mischief, which it is their province to copnteract. An estoppel prevents a man from alleging or setting up the truth, to the injury of another, when it is in contradiction to his former, acts and allegations. An estoppel rests on the principle, that every man is presumed to speak and act according to the truth and fact of the case, and the law denies him the right to contradict such reasonable presumption; per Nelson, J., 11 Wend. 117. The plaintiff had a full opportunity to object to the proceedings before the deed was acknowledgpd, but sealed his lips and permitted the purchaser to pay his money, and the deed to be acknowledged without warning or notice, and thus waived all objections. The construction of the writing executed by Matthew Pennock, dated the 15th May, 1842, belonged, peculiarly to the court, and there was nothing in the parol evidence in the cause, which ought to have withdrawn the instrument from the court; and in the judg.ment of this court they gave its true interpretation to the paper. The facts submitted by the court to the jury, in relation to George having received "his full proportion of the personal estate of his father, and which is assigned for error, fairly arises out of the evidence in the cause, and whether it was argued and contested by the counsel or not, is of no consequence. It is the duty of the court to instruct the jury upon all the ejjidehee, and to call their attention to the material facts which ought to control or affect the issue. The value of the instruction depends upon its being full and commensurate with the cause, as well as upon its accuracy. This court cannot say whether a particular point was contested by counsel below, or not; it is sufficient if the evidence warrants [177] the course pursued by the court. It would not be error' if the court omitted to instruct on a point -not made, but'it is a non sequitur that it is error to instruct, when the evidence requires and authorizes it, although the point was not' made by counsel; There is nothing in the error assigned as to the admission in evidence of that part of the record which contained the affidavit of Crowell and Pennock, for. the purpose of having the sale of part of, the property set aside, and the motion to that effect, and the proceeding of the court thereon. This evidence was so clearly relevant and proper, that it is not deemed necessary to say any thing except •that it was the act of the plaintiff on r ecord, in relation to the process on which the sale was made, and was part of the res gestee, inse■parably connected with the execution itself. There is nothing in the other errors assigned, which are quite subsidiary in importance and character, and require no special notice, under the aspect in which this court have viewed and determined this cause. The judgment is affirmed.-