Jackson ex dem. Witherell & Hyde v. Jones

Majority

p. 193

*Jackson, ex dem. Witherell and Hyde, against Jones.

UTICA,

August, 1828.

Headnote

The trail script of a jus tice’s judg ment, to be filed with and entered by the clerk of the county, pursuant to the 9th section of the statute, (sess. 41, ch. 94,) and the 20th section of the statute, (sess. 47, ch. 238,) need not show the proceedings before the justice, which respect the regularity of the judgment, or give jurisdiction.

The transcript being duly entered, is, per se, a lien on the lands of the judgment debtor; and proving the transcript, filing and entry, is sufficient in deducing a title by sheriff’s sale under a fi. fa. The justice, or any other proof of the judgment before him, need not be produced.

If the recital of executions in a sheriff’s de.ed of land describe them correctly in several particulars, but add others which are inaccurate, the latter may be "rejected as surplusage. All that is necessary is, that the dee,d show that the sheriff acted ¡under the authority of the executions, even adijiitting a recital to be important.

But the execution need not be set forth or recited in a sheriff’s deed; and if recited and described inaccurately, the variance will not affect the deed.

In making out a title under a sheriff’s deed, it appeared that the debtor in the execution was in possession several years before it issued, and" before the judgment; and that the defendant in the ejectment held under hipi as tenant. Held, that the defendant was estopped to show title out of the debtor.

Where the plaintiff ¡n ejectment made title under a purchase upon execution against the tenant of the judgment debtor, the tenant being defendant in ejectment, and showed by parol that the defendant confessed he held under the debtor by lease; and the defendant gave evidence that it was a written lease, and then objected t)iac the plaintiff should produce the lease, or show notice to produce it: held, that the production of the lease lay with the defendant; and he omitting to produce it, pr give legal proof of it, the lease should be taken to h.ave expired, or not to be a subsisting lease so as to prevent the plajnfiff's recovery.

Forms of all the documents necessary in the deduction of title to land under a justice’s judgment, yip.: The timiscript, execution, and endorsements, sheriff’s certificate of sale and sheriff’s deed. Note {a) to this case.

Ejectment brought .to recover possession of a lot of land situate in the' town of Hartford, in the county of Washington; tried at the Washington circuit, on the 16th day of June, 1826, before Timopp, C. Judge.

On the trial, the plaintiff gave in. eviden.ee the transcripts of two judgments, one in favor of Hyde, one of the lessors of the plaintiff, against Jonathan Morrison, rendered by Archibald Hay, Esq., one of the justices of the peace of the town of Hartford, on the 31st day of March, 1824, for 835 66 damages and costs, which transcript was filed in the clerk’s office of the county of Washington, on the 15th day of May, 1824. The other judgment was in favor of With- ' erell, the other lessor of the plaintiff against the same Jonathan Morrison, for 844 48§, rendered by the same Archibald Hay, a justice, on the 30th of March, 1824 ; and the transcript thereof was filed in the office of the cleric of the county of Washington, on the 22d of June, 1824. To these trans.cripts the defendants counsel objected, as being insufficient; but the judge overruled the objection, to which the defendants counsel pxcepted.

p. 194

• The plaintiff then gave in evidence an execution issued the 29th of June, 1824, on the judgment in favor of Hyde ; also *an execution issued on the judgment in favor of Witherell, on the 23d of June, 1824 ; to which executions the defendant’s counsel objected, because they varied from the transcript of the judgments, and also because they were issued too soon. But the judge overruled the objection ; to which the defendant’s counsel excepted. The plaintiff then gave in evidence the sheriff’s certificate of sale of Jonathan Morrison’s right and title to the lot of land in question, by virtue of the executions, on the 20th of September, 1824, to which the defendant’s counsel objected as insufficient; but the judge overruled the objection, and the defendant’s counsel excepted. The plaintiff then gave in evidence a sheriff’s deed of the premises in question, dated the 17th of January, 1826, to which the defendant’s counsel objected on account of variance with the executions. ' The objection was overruled by the judge, and the defendant’s counsel excepted. It was admitted by the defendant’s counsel that the defendant was in possession of the premises in question at the commencement of the suit.

Jonathan Wood was then called as a witness on the part of the plaintiff, and testified that the defendant was in possession of the premises in question last fall. The witness knew the lot well. Jones, the defendant, claimed to hold under Jonathan Morrison, who was in possession of the lot for several years previous to 1824. Jones told the witness he held under Jonathan Morrison by lease. The witness had heard Zina Morrison, about the time the defendant went into possession, frequently, when speaking of the lot, call it Jonathan’s. Farther testimony as to the interest of Jonathan Morrison is stated in the opinion of the court.

Here the plaintiff rested.

The defendant moved for a nonsuit, on the grounds, 1. That the lease from Jonathan Morrison, the defendant, was not produced; 2. Because the plaintiff had not proved that Jonathan Morrison had any title to the premises in question, and he was not in possession at the time when the judgments were rendered, or at the time of the sheriff’s sale.

p. 195

The motion was denied, and the defendant’s counsel excepted.

*The defendant then gave evidence to show a title out of Jonathan and in Zina Morrison; but as this branch of the case was not considered by the court, it is not stated here,^[1]

Verdict for the plaintiff.

A motion was now made, in behalf of the defendant, for a new trial.

p. 196

*S. Stevens, for the defendant.

1. There was no proof of the judgments before the justice on which the premises were sold. (M'Carty v. Sherman, 3 John, 429 . lieed v. Gilbert, 12 id. 296.) The transcripts were not proof of the fact of the rendition of the judgments. (Laws, sess. of 1818, p. 80.)

p. 197

*2. The transcripts are insufficient, because they do not show that the justice before whom, the judgments were rendered had jurisdiction. It does not appear, by the transcript of the judgment in favor of Witherell, that the defendant in that judgment was ever summoned or ever appeared ia court. Under such circumstances, the justice had no

p. 198

jurisdiction of *the cause. (Martin v. Moss, 6 John. Rep 126 . Bromaghin v. Thorp, 15 John. 476 .) It does not appear, by the transcript of Hyde’s judgment, that the defendant in that judgment was summoned, or that the parties joined issue before the justice; one of which is necessary to give the justice jurisdiction. (1 R. L. 386.) Justices are confined strictly to the authority given them by the statute. (1 John. Cas. 20, 228. 1 John. Ch. Rep. 594, note (a). 19 John. 33 . 6 Cowen, 234.) •

3. There was no evidence of the sale of the premises in

p. 199

question, under or by virtue of these executions. The statute is peremptory, and requires the sheriff to describe the execution in his certificate of sale, so that the purchaser may know who is entitled to redeem; and he should also state when the purchaser is entitled to a deed. (Sess. Laws of 1820, p. 167.) The sheriff’s certificate does not comply with the statute in these respects. Nor does the certificate show that the sale was by virtue of the executions issued on the judgments ; and the sheriff’s deed, given in evidence by *the lessors, shows that the sale was upon different executions. Witherell’s judgment was rendered on the 30th of March, 1824, and the transcript filed the 22d of June, 1824. The execution described in the sheriff’s deed was on a judgment, the transcript of which would appear to be filed on the 30th of March, 1824, and commanded the sheriff to make the money off the lands of which the defendant in the judgment was seised on the 30th of March, 1824, or at any time afterwards. Hyde’s judgment was rendered on the 31st of March, 1824, and the transcript filed the 15th of May, 1824. The execution described in the sheriff’s deed is on a judgment, the transcript of which would appear to have been filed on the 30th of March, 1824, and commanded the sheriff to make the money off the lands of which the defendant was seised on the 30th of March, 1824, or at any time afterwards. Neither of the executions produced had any such mandate. It necessarily follows, from these facts unexplained, that the executions by virtue of which the sheriff sold, were not the same produced in evidence.

Although a misrecital of the execution in the sheriff’s deed would not be material, yet in this case it does not appear there was any misrecital. It is to be presumed that the sheriff has correctly recited the execution under which he sold, in his deed. The plaintiff ought to have introduced the sheriff as a witness, and proved that the deed was in fact given by virtue of the sale upon the executions, if such was the fact. (Jackson v. Streeter, 5 Cowen’s Rep. 529.)

4. The plaintiffs in the judgments being the purchasers, they are chargeable with notice of every irregularity at

p. 200

tending the judgments, executions and sale. (Simonds v Catlin, 2 Caines’ Rep. 61 .)

5. The plaintiff ought to have been nonsuited on the trial, because he proved no title in Jonathan Morrison, the defendant id the judgments; he not being in possession of the premises, either at the time of the rendition of the judgments, Of the time of the salé; (2 Phil. Ev. 204, 5; 1 Yeates’ Rep. 21 ; 4 Cowen’s Rep. 601;) and because he did nbt legally prove that the defendant here came into possession under the defendant in the executions. The lease Was the highest evidence *of that fact,, and otight to have' been produced, or notice given to the defendant to producé it. If the defendant did hold Utidef Jonathan Morrison, (the defendant in the executions,) the plaintiff did not’ show that his (the defendant’s) term had expired, which cotild only be done by producing ’the léase, of by giving notice to the defendant to producé it, add then, oñ the nbn-prodtibtion Of it, proving its contents, (Adams On Eject. 202.)

D. Russell, contra.

The previous uninterrupted possession of the lot in question, by Jonathan Mdiflson, is evid ence of title in- him. He too is the cdtñmdtt source of title1 in this case. ( 2 John. Rep. 22 . 3 id. 388, 4 id. 202. 10 id. 338. 11 id. 504.) The defendant entered under Jonathan Morrison, whose right has, by operation of laW, passed to the lessors Of the plaintiff. The defendant, then, wás the lessor’s tehañt ; ánd he can sét up nó right hostile to that under Which he entered. The possession must be restored, and then Zihá MoffiSon can fesorf to his action, if he- Wishes to put in’ -issue the validity of his deed. (1 Caines, 444. 2 John. Rep. 45 , in note. 3 id. 188, 223, 499 . 6 id. 34. 7 id. 157, 186. 10 id. 258.)

As to the proof of the judgments. By the statute, (Séss. 41, ch. 94, \ 9,) the clerk is to die the transcript ánd enter the judgment) which,-when done, is to be a lien to all intents and purposes ás á common pleas judgment; If it is to have the same effect, all you need do is, to give the transcript in evidence. This pfoVeS every thing UeCessary to establish1

p. 201

the lien. It is not necessary on proving a C. P. judgment to gd back atid show the beginning or intermediate proceedings. The statute, (sess. 47, ch. 238, § 20,) contains the same provisions.

. ' As to the variance, it was not so material as to make it at all questionable that the executions recited in the deed áre the same which Were given in evidence at the trial. ( 10 John. 381 .) Beside, the defendant is a stranger to the proceedings, and canndt object their irregularity. ( 13 John. 97 .) The executions were not issued prematurely. The recital of the. executions is mere surplusage, and may be rejected.

* This leaves the deed to its full operation under Such executions ds in fact existed without regard to any recital. All variance may be amended, and should be recéiVed as if this had been actually done; The sheriff’s deéd alone was sufficient evidence of á sale, without the certificate. That is surplusage, and may also be put out of the case. The rights of the immediate parties to the sale are the same, whether ahy certificate be given or not.

The lessors of the plaintiff claimed a right to recover the premises in question, as purchasers át a sheriff’s sale, under two judgments against one Jonathan Morrison. One of the judgments was in favor of Withered, and the other of Hyde; and they became joint purchasers of the premises in question upon the sale.

The judgments were originally obtained before a justice of the peace, and the transcripts were certified and filed in the county clerk’s office; and the judgments were entered therein, and the executions were issued, in pursuance of the.provisions of the 9th and 10th sections of the act to extend the jurisdiction of justices of the peace, passed the 10th of April, 1818. The plaintiff produced a certified copy of the transcripts from the county clerk’s office, as evidence of the judgments. They were objected to as insufficient; but the objection was overruled by the judge. The grounds of the objection to the transcripts do not appear to have been specified upon the trial.

p. 202

It is now, however, contended, 1. That the transcripts were not proof of the fact of the rendition of the judgments; that the magistrate before whom the judgments were obtained, and who gave the certificates or transcripts, should have been called to prove them : and 2. That, admitting the transcripts to be competent evidence in themselves, yet they were insufficient in this case, because they did not, show that the justice before whom the judgments were rendered had jurisdiction ; it not appearing, in either case, that the defendant was summoned or ever appeared in court.

The 9th section of the act already referred to, makes it the duty of the county clerk to file the justice’s transcript of *the judgment, and bond; and enter the judgment in a book, to be by him kept for that purpose, together with the time of his receiving the same; and declares that any judgment so entered by the said clerk, shall, from and after the time of Ms receiving it as aforesaid, be a lien on real estate, to all intents and purposes, as if the said judgment had been rendered in the court of common pleas of the county where such judgment shall be given.^[2]

I am inclined to think it was the intention of the legislature to put these judgments upon the footing of judgments in the common pleas, in all respects. They are, by the express terms of the act, to be a lien on real estate, in the same manner ; and the transcript, when received and filed, is to be considered the evidence of the judgment, and to be proved" in the same manner as other documents or papers of the same character on the files of the office. I do not understand the objection to have been, that the transcripts produced on the trial were not properly proved to

p. 203

have been copies of the transcripts on file; but that neither were competent evidence of the judgments, unless authenticated by the oath of the justice. The legisature, by directing the clerk of the court of common pleas to enter the judgments upon the filing of the transcript, seem to have decided that transcript, without the oath of the justice, is sufficient evidence of the judgments before him. If the transcript were to be verified by the oath of the justice, it should be before, or at the time when it is filed, and made the evidence or foundation of a judgment, upon which the clerk of the court is authorized to issue an execution. The transcript is prima facie evidence of the judgment.^[2]

As to the second point, the judgments themselves are not directly in issue. The defendant is a stranger to them. They are drawn in question collaterally. They are, as between these parties, to be considered as judgments of the common pleas, and as valid and regular until impeached.

The sheriff’s deed describes the executions under which the sale was made, in a manner which leaves no doubt'that they were the same executions produced and proved in the •cause. The parties are the same, as also the test, and the amount directed to be levied. Sufficient appears to show that those executions were the authority under which the sheriff acted, and that is all that is necessary. The execution need not be set forth or recited in the deed, and if recited and described inaccurately, the variance will not affect the deed.^[3] ( 10 John. 381 . 18 id. 7. 2 Phil. Ev. 204, 5, note

[1] [1] Jackson v. Tuttle, post 233. The transcript may be proved by exemplification, or as other records of the Common Pleas. Tuttle v. Jackson, 6 Wen. 213. S. C. 9 Cow. 233 , 238. It need not be authenticated by the oath of the justice nor proof of his official character. Tuttle v. Jackson, 6 Wen. 221, 122. Nor show on its face that the justice had jurisdiction; id. S. C. post, 233, and a very imperfect transcript, written in bad English, if intelligible in its essential respects will answer. Jackson v. Browner, 7 Wen. 388. But a transcript cannot be used as evidence of the judgment for the purpose of establishing a former recovery, or any purpose except that contemplated by statute. O’Connel v. Seybert, 13 Sergt. & R. 54, 57.

[2] [2] Per Chancellor in Jackson v. Roberts’ executors, 11 Wen. 422, 428.

p. 204

The title" or interest of Morrison, (the defendant in the judgments and executions,) in the premises in question, was sufficiently shown prima facie.

Jonathan Wood testified, that Jonathan Morrison was in possession of the premises in question, for several years previous to the year 1824 \ that the defendant, Jones, was. in possession at the commencement of this suit; that, he claimed to hold under Jonathan Morrison; and he told the witness that he held under Jonathan Morrison by lease. Thomas Jones, a witness on the part of the defendant, testified that the defendant, his father, went into possession of the premises under Jonathan Morrison, in the fall of 1823. The lease was executed on the 4th of November, 1823. All the evidence in the case shows that Jonathan Morrison was the reputed owner of the lot in question.

The defendant, at all. events, is estopped from denying the title Of Jonathan Morrison as landlord. His possession was derived from Morrison. He has acknowledged the general interest or title of the lot to be in him; and if the defendant has a subsisting right to the possession under his lease, it was his business to show it by producing the lease. Independent of the lease, he is not at liberty to deny the title of his landlord ; The lessors stand in the place of Jonathan Morrison. His rights have passed to them by operation of law. (2 Phil. Ev. 204. Jackson v. Town, 4 Cow. 601 ; and vid. 5 Cowen, 129. 7 Cowen, 325. 2 T. R. 53. 1 T. R. 760. 1 Caines, 444. 2 John. Cas. 223, 499. 6 John. Rep. 34 . 7 id. 157, 186 . 10 id. 258.)

It is contended, that the plaintiff should have produced the lease, or given notice to the defendant to produce it; that the lease was the highest evidence of the fact that the defendant *catoe into possession under Morrison. But the fact of his having gone into possession under a written lease, came out from.the defendant’s witness. His confession» as proved by the plaintiff, was, that he held under Jonathan Morrison by lease.1 But whether it was a parol or written lease, did not appear until discloséd on the part of the defendant. He was the tenant to whom the lease was given; had it in his possession ; and if he had any

p. 205

existing rights under it, it was his business to produce it.

In this view of the case, all the evidence in relation to the title of Zina Morrison was irrelevant. The defendant was precluded from setting up a title in a third pers’on. The motion for a new trial must be denied.

New trial denied.

Footnotes

[1] [1] § 63 of the New York code, substantially reenacts the above provision, and also provides, that a certified transcript of the judgment may be filed and docketed in the clerk’s office of any other county, and with-the like effects, in every respect, as in the county where the judgment was rendered; except that it shall be a lien only from the time of filing and docketing the transcript. The judgment acquires no additional validity from being transcribed and docketed, except that it becomes * lien on the real estate of the judgment debtor. Young v. Remer, 4 Barb. S. C. Rep. 442. See, also, Johnson v. Burrill, 2 Hill, 238 .