Wood v. Colvin — 2 Hill & Den. 566

Majority

p. 566

Wood vs. Colvin.

Headnote

Where one purchased lands at a sheriff’s sale under a judgment which he knew was satisfied, and then assigned the sheriff’s certificate to another for a "valuable consideration and without notice; held, that the latter could acquire no title in virtue of the certificate, as against a purchaser under a junior unsatisfied judgment.

If a judgment be satisfied, the power to sell under it ceases; and, semble, should a sale take place, even a bona fide purchaser without notice will acquire no title.

But the sale will be effectual as against the judgment debtor, if he be present at the sale and suffer a bona fide purchaser to buy and pay for the property, without notifying him that the judgment has been satisfied. Semble.

Otherwise, however, in respect to judgment creditors of the debtor; for their rights cannot be affected by the neglect or other fault of the debtor. Semble.

Where the purchaser has previous knowledge that the judgment is satisfied, the sale will be void even as to the debtor, though he omitted to give notice. Semble.

Ejectment, to recover a part of several lots of land, tried before Moseley, 0. Judge, at the Onondaga circuit, in September, 1841. Thaddeus M. Wood died seized of the premises in question in January, 1836, leaving a daughter, Emily, who was married in 1833 to Oscar B. Brackett. On the 21st of October, 1836, Cyril H. Brackett recovered a judgment in this court against Oscar B. Brackett, the husband of Emily, for $2115,72, on which a fi. fa. issued in July, 1838. On the 4th of May, 1839, all the right and title of the debtor to the premises in-question were sold under the execution and bid off by the plaintiff in that suit, and a certificate of the sale duly filed. On the 4th of August, 1840, the plaintiff in this suit, Wood, redeemed under a judgment in his favor against Oscar B. Brackett for $595,88, docketed July 22, 1840; and on the 16th of December, 1840, the sheriff executed a deed to the plaintiff as a redeeming judgment creditor. Under that title the plaintiff claimed to recover.

The defendant proved a judgment in favor of Henry H.

p. 567

Hulburt, against Oscar B. Brackett, for $1567,04, docketed July 8th, 1836, a fi. fa. upon the judgment issued the same month, and a sale of the premises by the sheriff on the 31st of July, 1838, to Gardner Lawrence. On the 11th of November, 1839, Lawrence, by a writing under seal purporting to be made “for a valuable consideration,” authorized and directed the sheriff to deed the premises to the defendant Colvin; and on the 15th of April, 1840, the sheriff executed a deed to the defendant.

The plaintiff then' proved that the Hulburt judgment, under which the defendant made title, was paid in full and the plaintiff in the judgment satisfied in August, 1836. Gardner Lawrence, who afterwards became the purchaser, was a party to the arrangement by which the judgment was paid. Brackett, the debtor, was present at the sale under the Hulburt judgment, and said nothing about the payment. The judge instructed the jury to find a verdict for the defendant, and the plaintiff excepted. Verdict for defendant. The plaintiff now moved for a new trial on bill of exceptions.

A. Taber, for the plaintiff.

B. D. Noxon, for the defendant.

By the Court,

When a judgment is satisfied, there is no longer any power to sell, and it is difficult to see how a title can be acquired even by a bona fide purchaser without notice of the payment. (Sherman v. Boyce, 15 John. R. 443; Jackson v. Cadwell, 1 Cowen, 622; Woodcock v. Bennett, id. 711; Carter v. Simpson, 7 John. R. 535 ; Jackson v. Anderson, 4 Wend. 474 ; Lewis v. Palmer, 6 id. 367; Swan v. Saddlemire, 8 id. 676; Hammatt v. Wyman, 9 Mass. R. 138 ; King v. Goodwin, 16 id. 63.) The general rule is, that a purchaser under a power buys at his peril, and however innocent he may be, we have not been referred to any case which holds that he can acquire a title without showing a

p. 568

valid subsisting power. Jackson v. Morse, (18 John. R. 441,) seems to go the whole length of settling the doctrine the other way. The plaintiff in that case was a bona fide purchaser under a tax sale by the comptroller. But on proof that the taxes had been paid before the sale, it was held that the plaintiff acquired no title. I am unable to distinguish that case, in principle, from one where there has been a sale under a satisfied judgment.

If a purchaser can acquire a title under a satisfied judgment, it must be on the ground that there has been some fault on the part of the judgment debtor. If he stands by without taking any measures to arrest the sale, and without giving notice of the payment, and suffers a purchaser in good faith to part with his money, he may be estopped from afterwards alleging the payment to defeat the title of the purchaser. (See Per Savage, Ch. J. in Jackson v. Cadwell, 1 Cowen, 622, 644.) In the case at bar, Brackett, the debtor, was present at the §ale under the Hulburt judgment, and said nothing about the payment. But there are two difficulties in the way of setting this up as an estoppel. 1. Lawrence was not a bona fide purchaser. He had full notice that the judgment had been paid, and the debtor was not in fault in omitting to tell him what he very well knew already. If a third person had bid, it may be that the judgment debtor would have spoken. 2. But if the debtor was estopped, Cyril H. Brackett was a judgment creditor having a lien on the land, and I do not see how he could be concluded, or his lien be destroyed, by any neglect or other fault on the part of the debtor.

I may here notice a suggestion of the defendant’s counsel, that there was a fraudulent arrangement between the debtor and Lawrence, to keep the Hulburt judgment on foot after it had been satisfied. Be it so. However such an arrangement may affect the parties to it, neither they, nor persons claiming under them, can derive any benefit from the fraud as against innocent third persons. The defendant claims under Lawrence, a party to the fraud; and he seeks to defeat the plaintiff, who claims under Cyril H.

p. 569

Brackett, who had nothing to do with the fraudulent arrangement.

The case finally comes to this. Lawrence acquired nothing by his purchase. Instead of taking a deed himself, he directed the sheriff to give the deed to the defendant. Standino- thus in the shoes of Lawrence, I do not see how the defendant can make out a valid title as against the purchaser under the judgment of Cyril H. Brackett. If the defendant paid any thing for the assignment—and it seems to have been assumed on the trial that he did—he must look to Lawrence for an indemnity; or if that resource fail, the loss must be his misfortune.

If the evidence left any room for doubt that the judgment has been satisfied, the judge should have left that question to the jury, with instructions that if the judgment was paid the plaintiff was entitled to a verdict.

New trial granted.

Cases cited

Jackson ex dem. Anderson v. Anderson 4 Wend. 474 N.Y. Sup. Ct. p. 567