Majority
p. 225Jackson, ex. dem. Masten, against Bush. NEWYORK, May, 1813.
Headnote
Where land is sold under execution at a. sheriff’s sale, a deed executed to the purchaser, by the deputy sheriff, is goodIn an action of ejectment by a purchaser under a sheriff’s sale, against a person in possession under the debtor, without title, or collusively, the defendant cannot set up an outstanding title in a third person, to defeat the recovery of such, purchaser*
THIS was an action of ejectment brought to recover 50 acres of land, in Jericho, in the county of Chenango. The cause was tried at the Chenango circuit, the 16th September, 1812, before Mr. Justice Van Ness.
The premises in question were sold by the sheriff at auction, on a ft. fa. issued on a judgment in favour of D. Dickenson against Japhet Bush, docketed the 26th October, 1811; and the plaintiff offered in evidence a deed from the sheriff to the lessors, which was signed “ William Munro, sheriff of the county of Chenango, by his legal deputy, Jabes Robinson and also the regular deputation of Robinson by the sheriff, under his hand and seal. The defendant’s counsel objected to the deed executed by the deputy, but it was admitted by the judge.
The defendant offered in evidence a.deed from Japhet Bush to the defendant, who was his son, dated the 24th December, 1810. This deed was found to be fraudulent as against creditors. The defendant then offered a record of a judgment in favour of C. Knapp, against Japhet Bush, docketed the 18th June, 1811, and an execution issued thereon, and a sale of the premises under it, and a deed executed by the sheriff on such sale to Japhet Bush, dated the 10th December, 1811. To this evidence the plaintiff’s counsel objected, and it was rejected by the judge: and a verdict was found for the plaintiff.
A motion was made to set aside the verdict, and for a new trial.
The cause was submitted to the court without argument.
The deed executed by the deputy sheriff, in the name and on the behalf of his principal, was a good execution of the deed. A sale, and the consummation of that sale by deed, are acts which the sheriff may do by deputy. The law does not require them to be done by the sheriff in person, and the general doctrine on this subject was fully illustrated in the case of Tillotson v. C heetham. ( 2 Johns. Rep. 63 .) Nor was the defendant to be allowed in this case to set up an outstanding title to defeat the plaintiff’s recovery. The defendant was the son of Japhet Bush, and the lessor of the plaintiff a purchaser of the premises
p. 226
at the sheriff's sale on the execution against .Jctphet. It was in proof that .Tapket was the former owner, and the defendant set up a deed from hIs father, which deed was found to be fraudulent. The defendant was, therefore, in possession under his father, and without title, and if his father could not set up an outstanding title to defeat the purchaser under the judgment against him, (and that he could not the case of Jackson v. Graham, in 3 Caines’ Rep. 188 . is in point,) the son being in under him, can be in no better capacity to do it. The rule excluding a defendant, against whom there has been a judgment and execution, from defeating the purchaser’s recovery of his possession, by setting up a title in some third person, is founded in justice and policy; and the reason of the rule equally applies where such defendant has, in the mean time, delivered up his possession to another. He shall not be permitted to do indirectly, and through the agency of another, what the law will not suffer him to do himself. As the defendant set up a title under his father, and by a deed directly from him, which turned out to be fraudulent, and offered to show no other title in himself, the inference was necessary that he came in under his father, and by collusion with him, to defeat the claims of creditors.
Motion denied.