Davis v. Tiffany — 1 Hill & Den. 642

Majority

p. 642

Davis vs. S. Tiffany.

Headnote

A vendee of lands, having obtained his deed, was subsequently notified of an outstanding lien by judgment against the vendor, whereupon the vendee promised the creditor to retain a portion of the purchase money for his benefit, which the vendee did not do, but, under a belief that the vendor was in good circumstances, paid it to him. The creditor suffered the judgment to lie ten years after it was ■docketed, and then sued out execution, on which the lands so purchased were seized. Held, that the vendee’s right being clear, he was entitled to summary relief, by an order for a perpetual stay of proceedings; though, semble, had there been doubt of his good faith, either in respect to the original purchase, or the nonfulfilment of his promise as to retaining the purchase money, the court would have allowed the creditor to sell.

The case of Hewson v. Dygert, ( 8 John. Rep. 333 ,) so far as it imports’ an unqualified denial of the vendee’s claim to summary relief, under these and similar circumstances, is overruled.

D. Burwell, in behalf of G. S. Tiffany,

moved for a perpetual stay of the fi. fa. issued in this cause against the defendant, in respect to a farm situated in that county, purchased by G. S. Tiffany of the defendant S. Tiffany, on the 26th day of July, 1831. ■ ;

It appeared that the judgment on which the execution issued was perfected on the 28th day of April, 1826, on a bond and warrant intended to secure the plaintiff against a letter of credit, in consequence of transactions under which there was now due $1456,13, on the judgment, with some interest, for which the execution issued tested the first.Monday of January, 1841.

G. S. Tiffany purchased without actual notice of the judgment, paid a part down, and afterwards the remainder, the defendant being apparently in good circumstances.

& Stevens, contra,

read an affidavit showing that the plaintiff, before J. G. Tiffany had paid the defendant in full for the farm, gave him notice of the judgment, when he promised to keep back sufficient of the purchase money

p. 643

to indemnify the plaintiff for the sum he . then stated to be due.

The plaintiff does not make out such a case against J. G. Tiffany as to require that I should permit a sale. T would do so, if I saw any serious doubt whether he had not purchased with a view to defraud the plaintiff, or had paid the balance in bad faith, which he promised to keep back. I would do so, in order that the question of fraud might be put in a train for determination by a trial at law, or a hearing on a bill in equity. But the good faith of the original purchase is not denied; and the promise to retain a part was made before the judgment had ceased to be a lien by the lapse of ten years. No court would hold that this farm was, under the circumstances, bound by the judgment after that time had elapsed. This being clear, we are warranted, though it seems formerly to have been held otherwise, (Hewson v. Dy gert, 8 John. 333 ,) in staying the execution upon motion, on. the ground that an attempt to draxv the purchaser’s title in question by a sale is an abuse of our process. The judgment is gone in respect to him, as effectually as it would be in respect to a defendant who has paid the money upon it in full. (Little v. Harvey, 9 Wendell, 157. Graff v. Kip, 1 Edw. Ch. Cas. 619. Roe v. Swart, 5 Cowen, 294. Pettit v. Shepherd, 5 Paige, 493. Wood v. Torrey, 6 Wendell, 562. Tufts v. Kip, 18 id. 621. Lansing v. Vischer, 1 Cowen, 431.)

Motion granted.