Bunker v. Rand

By the Court, Cole, J. There is certainly much force in the position that the statute which requires that lots or parcels of land sold upon execution shall be separately exposed for sale, had no application to the sale made in the case of Bemis v. Rand. It appears that the lands sold on the execution in that case lay in one body, and had been used and occupied as a farm for many years. And as a general rule it may be far more advantageous for the debtor to have property thus situated sold in one body rather than divide it up into parcels. However this may be, still it is very clear that the sale was not void because the sheriff neglected to comply with the law requiring the land to be sold in parcels, but only voidable at the instance of the party aggrieved. Cunningham v. Cassidy, 17 N. Y., 276. If the property was capable of being sold in lots'vor parcels, and the judgment debtor was prejudiced by the departure of the sheriff from the requirements of the statute, his remedy was to apply within a reasonable time and have the sale set aside on that ground. It is proper to add that it was proposed to show by the officer who made the sale, that he repeatedly offered the lands in separate parcels of forty acres, but could get no bidders, because the whole farm was largely encumbered by judgments and mortgages, and there [259] fore be was compelled to sell the whole farm together. This evidence was ruled out, but upon what ground i's not very obvious, nor is it essential to inquire at this time. It is sufficient to say that the sale, as made, worked no fraud or wrong to the judgment debtor, and least of all was it void. It was also objected that the plaintiff did not show either title or possession of the land sold in the defendant, upon which the execution sale could operate. The allegation in the complaint isj in substance, that the defendant was, on the day of the rendition of the judgment in the Bemis case, lawfully seized as of an estate of inheritance in fee simple and in possession of the lands sold. The defendant, in his answer, denies any knowledge or information sufficient to form a belief as to each and every allegation of the complaint, except that he has been in possession for a long time and is now in possession. It is very questionable whether this answer controverts the facts of title and possession in the defendant on the 19th of September, 1859, and whether it does not fully admit those facts. But further than this, the' plaintiff offered to prove the length of time the defendant had been in possession of the land prior to the date of the sheriff’s deed, but this evidence was objected to and ruled out as incompetent. If .there was any doubt upon the point whether the answer fairly admitted the fact that the defendant was in possession of the land sold at the time of the rendition of the judgment in the Bemis case, it was surely competent to establish that fact by proof on the trial. The soundness of this view is too plain to require any argument to sustain it. If the defendant was in possession of the land sold at the time the judgment was rendered, as well as at the time of sale, this was sufficient prima facie evidence of title to authorize the creditor to sell on execution. And the cases cited by the respondent’s counsel are full to the point, that where the defendant in a judgment is in possesssion at the time of levy and sale, he can make no defense .against the purchaser at the sheriff’s sale, but such purchaser acquires a [260] right at least to the possession of the debtor. Locke et al. v. Coleman, 4 Monroe, 315; McConnell v. Brown &c., 5 id., 478 ; and Addison v. Crow, 5 Dana, 271, are to the same effect, and we suppose there is no doubt about the soundness of this principle of law. We are therefore relieved from the necessity of considering the validity of the tax deed made and executed to Barker in 1843 ; for as between these parties, when it appears that the defendant was in possession at the time of the rendition of the judgment and sale, this is sufficient evidence of title prima facie to warrant a recovery in this action. It is argued that the judgment in the case of Bemis v. Rand was void, because it was entered by the clerk without application to the court, and there is no proof in the judgment roll of the non-appearance of the defendant. We know not what there is in the record which authorizes the assumption that the judgment was entered by the clerk without the action of the court. The fall term of the circuit court for Walworth county commenced by law (chap. 84, Laws of 1858; R. S., p. 645) on the third Monday of September, which would be the 19th day of the month in 1859, the day the judgment in this case was entered. This being the case, the presumption is, that the judgment was entered while the court was in session, and that due proof was made of the non-appearance of the defendant. Some objections were taken to the form of the execution and sheriff’s certificates of sale, but we do not think them of sufficient importance to require special attention. The judgment of the circuit court is reversed, and a new trial ordered.