Payment v. Church

Marston, J. The first assignment of error in this case counsel have abandoned, and the fourth is too general under the facts to be considered. The second relates to the admission of the written agreement to pay the costs and charges of keeping and taking care of the tug seized under the attachment proceedings. Testimony had been introduced to show that the plaintiff in this case had requested that the tug be released from the levy and the property in dispute levied upon and taken in lieu thereof, and that in case this change was made he (plaintiff) would pay the ship-keeper’s fees; and that this paper (Exhibit I) was given in pursuance of this arrangement. Under such circumstances we can see no possible objection to its introduction. Whether this plaintiff had authority to bind Alfred C. D. Payment, and to sign his name to this agreement was of no consequence in this controversy. The object of introducing this agreement, with the other evidence in the case, was to show that the plaintiff in this case had so conducted himself that he was estopped from maintaining this action, and for this purpose and as one' of the links in the transaction it was admissible. The third assignment of error relates to the refusal of the court to permit plaintiff to show that at the time of the execution sale of the property in dispute to defendants, he, plaintiff, did not know of any defects in the judicial proceedings which would render the judgment and execution sale thereunder void. The defendants, executiori purchasers, did not claim title to this property under a valid judgment and execution sale. Their claim was that plaintiff supposing that a valid judgment had been rendered, requested the release of certain property which had been seized, offering to and actually turning out this property to be sold in lieu thereof, and that these facts and his presence at the sale and conduct thereat as a bidder and otherwise, estopped him from denying the title which they had thus acquired. The plaintiff knew that a judgment had been rendered [779] against himself and others, and that the property was being sold to satisfy that judgment. He apparently took ho steps to ascertain whether the proceedings had been regular and a valid judgment rendered or not. If irregular, he clearly could waive the irregularity, and this he might do by actions as well as by words, and the effect upon the defendants would be precisely the same whether he knew of the defective proceedings previous to the sale or not. We think the court did not err in rejecting this testimony. The conclusion arrived at by the court below from all the facts in the case, we cannot review. The judgment must therefore be affirmed with costs. The other Justices concurred.