Administrator of Janes v. Martin

[96] The opinion of the court was delivered by Phelfs, J. That the execution, if to be found, or a copy duly authenticated, should have been produced, there is no doubt. But appears, in this case, that the secondary or parol proof of the existence and contents of the paper was received upon proof of its loss. Whether the proof of the loss was sufficient or not, it is not our province to determine. It was a matter of fact to be settled by the court below, upon such evidence as was satisfactory to them, and even if the evidence were unsatisfactory to us, it would furnish no legitimate ground for reversing their judgment. It is not a ground of error. The evidence as to the proceedings of the officer, in conducting •the sale, was doubtless proper, as tending to show the sale fraudulent and mala fide; but of this proof, the defendants had the full benefit, in the manner in which it was submitted to the jury. Admitting the proceeding of the officer to have been irregular, yet it does not follow that the sale was void. If there be any thing improper in the transaction, it consists in the circumstance that the manner of sale was unfavorable to the debtor, as tending to dispose of the property at a reduced price. In this point of view, it was a matter which concerns the debtor affine, and for which he has his remedy against the officer. It is -certainly not competent for' a stranger to interfere and contest the title of the purchaser. It is a settled rule, that the sale is not to be affected by any irregularity or impropriety in the proceedings of the officer. The purchaser is not supposed to be cognizant of the previous proceedings, nor can he be affected by the subsequent acts of others. It is on this ground, that our statute gives a remedy to the debtor, in such case, against the officer. Judgment of county court affirmed.