Dwight's Case — 15 Abb. Pr. 259

Majority

p. 259

DWIGHT’S CASE.

Supreme Court, First District; General Term,

Sept., 1862.

Headnote

PüECHASEE AT JUDICIAL SALE.-HoTION BY ONE NOT A PAETY to the Action.

The court may relieve a purchaser at a sale under execution, when the purchase has been induced by misrepresentation.

There is no reason why a person, not a party on the record, addressing the equitable summary jurisdiction of a court of law, should not obtain the relief to which he would be entitled if he was a party.

Thus, where D. purchased at a sale on execution ‘ ‘ all the right, title, and interest” of T., in certain real estate, misled by the representation of the creditor's attorney that T. had good title, and afterwards discovered that T. had conveyed the property prior to the docketing of judgment;—Held, that D. was entitled, on motion, to have the sale set aside, and to be released from his purchase.

Appeal from au order setting aside a sale on execution, and •directing that a new execution issue.

Judgments for costs were recovered against one Samuel W„ Tallmadge, in three several suits, upon which executions were issued by the attorney for the plaintiffs, to Rensselaer county.

The sheriff of Rensselaer then levied on certain land in that county, and sold the “ right, title, and interest of Tallmadge therein” to one Timothy C. Dwight, and executed to him the usual certificate, and then returned the executions to the proper ■county, with indorsements of satisfaction thereon.

Dwight was not a plaintiff or defendant in any of these three suits, but he claimed to be a creditor of Tallmadge, and to have some interest in the judgments. After the return by the sheriff of the executions, as above stated, Dwight moved at special term, upon notice to the sheriff and the defendant, Tallmadge (the plaintiff’s attorney consenting), to vacate the returns and the satisfactions of the judgments under them; and, also, that the sale and all proceedings thereon be declared void, and that new executions be allowed to issue. The ground of his motion

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was, that he had been advised by the attorney for the plaintiffs to purchase the land in question, but that after the sale he had discovered a previous conveyance by Tallmadge of the land so-sold.

Hr. Justice Barnard, at chambers, directed the entry of an order vacating the returns and satisfactions, together with the-sale and all proceedings thereon; and authorizing the plaintiffs-to issue new executions for the amount of the judgments.

From this order, the defendant Tallmadge appealed to the general term.

Elbridge T. Gerry, for the appellant.

I. Not being a party to any of these suits, Dwight was a stranger to the judgments, and not entitled, on motion, to impeach the regularity of, nor to move to set aside, proceedings thereon. 1. The case is widely different from that of a purchaser under a foreclosure-sale ; for there, specific property is pointed out by the decree of the court. 2. But a purchaser at a sheriff’s sale is not entitled to any such favor; and as the present motion was not merely to set aside the sale, but also the executions, the court, at special term, erred in entertaining such a motion by him. (Berry a. Riley, 2 Barb., 307 ; Smith a. McGowan, 3 Ib., 404; Pierce a.. Alsop, 3 Barb. Ch., 184 ; Crocker on Sheriffs, § 491; Price a. Shelby Circuit, Hardin (Ky.), 254; Weisiger a. McClure, 5 J. J. Marsh., 292 ; Phillips a. Coffee, 17 Ill., 154 ; Hitchcock a. Roney, Ib., 231; Wallop’s Executors a. Scarburgh, 5 Gratt., 1 ; Nuckols a. Mahone, 15 Ala., 212 ; Gridley a. Duncan, 8 Sm. & Marsh., 456; Hutchinson a. Greenbush, 30 Maine (17 Shep.),. 450; Blair a. Greenway, 1 Browne (Pa.), 218.) 3. In a particular instance, a purchaser at a sheriff’s sale has a remedy by statute—not on motion. (2 Rev. Stat., 375; 3 Ib., 5 ed., 658, § 97.) 4. The consent of the plaintiffs’ attorney to the motion does not improve Dwight’s status. (Laws a. Thompson, 4 Jones (N. C.), 104.)

H. By the terms of the sale, Dwight acquired only “ the right, title, and interest” of Tallmadge in the land sold; and the rule is settled that, on such sale, the maxim caveat emptor applies. (2 Rev. Stat., 373; 3 Ib., 5 ed., 655, § 78; The Monte Allegre, 9 Wheat., 616 , 647; Stafford a. Williams, 12 Barb., 240 , 243; Homesley a. Hogue, 4 Jones (N. C.), 481;

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Flynn a. Williams, 1 Ired., 509 ; Reed a. Kinnaman, 8 Ired. Eq., 18 ; Del. & Lack. R. R. Co. a. Blair, 4 Dutcher, 139; Hensley a. Baker, 10 Missouri, 157; McLouth a. Rathbone, 19 Ohio, 21 ; Creps a. Baird, 3 Ib., N. S., 277; O’Neal a. Wilson, 21 Ala., N. S., 288, 295; Lang a. Waring, 25 Ib., 625; Starke a. Harrison, 5 Richard's (S. C.), 7; Harth a. Gibbes, 3 Ib., 316; Andrews a. Murphy, 12 Ga,, 431 ; McWhorter a. Beavers, 8 Ib., 300; Rodgers a. Smith, 2 Carter (Ind.), 526; Vest a. Weir, 4 Blackf., 135 .)

HI. Dwight seeks to overthrow this rule, and to avail himself < of his own folly, in not ascertaining the facts before purchasing. 1. He never caused any search for prior conveyances to be made. 2. He makes no excuse for his carelessness, and is not entitled to favor. (Biddle a. Moore, 3 Penn., 161 .)

Albert Comstock, for Dwight, opposed.

I. The objections to the right of Dwight to move in the action are of a technical and preliminary nature, and the motion having been heard on the merits, they cannot now be considered. (Main a. Pope, 16 How. Pr., 271 ; Roosevelt a. Dean, 3 Cai., 105 ; S. C., Col. & C. Cas., 460.)

H. Besides, the right of any party to an action to ask relief •by a summary application therein, and in no other way, against the purchaser, is indisputable; that the purchaser should have the right in a similar manner to apply, seems natural, just, and • correlative. (Brown a. Frost, 10 Paige, 243 ; Requa a. Rea, 2 Ib., 339; Darvin a. Hatfield, 4 Sandf., 468 ; Lents a. Craig, 13 How. Pr., 72 ; King a. Morris, 2 Abbotts' Pr., 296.) A creditor certainly has.' (May a. May, 11 Paige, 201; Nicholl a. Nicholl, 8 Ib., 349.) ■

III. But beyond elementary principles, authorities for vacating judicial sales in behalf of purchasers, and others aggrieved ■ on the ground of mistake, &c., are numerous; and sheriffs’ returns on executions have been vacated, and new executions ordered to issue, for reasons similar to those here urged. (Hoppock a. Conklin, 4 Sandf. Ch., 582 ; American Ins. Co. a. Oakley, 9 Paige, 259; McGown a. Wilkins, lib., 120; Williamson •a. Field, 2 Sandf., 533 ; Suydam a. Holden, in Court of Appeals, Soward’s Code of 1859, 440.)

IY. The maxim caveat emptor does not apply to Dwight’s

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prejudice within the ruling of the authorities referred to; and the statutory provisions referred to by the appellant’s counsel-are not conclusive as to the manner of seeking, or nature of the relief, for the action by the purchaser must be in the original-suit. (3 Rev. Stat., 5 ed., 658; Hicholl a. Richoll, supra.)

In the Ontario Bank a. Lansing ( 2 Wend., 260 ), on the sale of the property under a fi.fa., the-plaintiff inadvertently bid a sum less than the amount of his execution, and the sale on his application was set aside. Again in Mulks a. Allen (12 Ib., 253), the plaintiff and deputy sheriff, were deceived, as to the locality of the property, by the representations of the defendant; in consequence of which the plaintiff bid $800 for it, when it was not worth more than $150; it was struck off to him, and on motion a resale was ordered. There are other cases, no doubt, in which the court refused to interfere, either on the ground that junior judgment-creditors had acquired rights, or that a court of equity was the proper tribunal to grant relief. But neither of these grounds apply to the present case. It resembles the case of Hulks a. Allen, where the purchaser was deceived by the representations of the-defendant as to the locality. Here the purchaser was deceived, to be sure, by the misrepresentations of the plaintiff’s attorney;; but the misrepresentations were equally mischievous in the one case as in the other. They induced the purchaser to do what he otherwise would not have done. The purchaser in Hulks Allen was not obliged to rely on the misrepresentations any more than in this case; he could have obtained correct knowledge as tó the locality of the property by further inquiry; but still the court relieved him from the purchase.

As to the objection that the person making this application is not a party to the actions in which the executions were issued, if it is at all proper to consider that objection now, I think it should not be sustained. Parties, other than parties to suits, are frequently allowed to address themselves to the equitable consideration of courts of law; as, for instance, judgment-creditors in other actions against the same defendants, on motions-to set aside fraudulent judgments. Besides, in analogy to applications like the present, in foreclosure and partition suits in courts of equity, there is no reason why a person, not a party.

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on the record, addressing the equitable summary jurisdiction of a court of law, should not obtain the relief to which he would be entitled if he was a party.

The order of the special term should be affirmed, with costs.

Baehaed, J., concurred.

Ingbaham, P. J., dissented.