Majority
p. 387Jackson, ex dem. Martin and others, against Pratt. NEWYORK, Oct. 1813.
Headnote
^"variance mentionedinthejudgment roll, of the total amages, it was totj]® clause of in toto se at tingunt, being ^tStion,e”m! "hejudgment The recital of ¡n a sheriff’s necessary,and a mistake or, vanancemthe recital is not material, and does not affect the validity of the deed, so long as there was an existing and sufficient authority to the sheriff, to 'warrant the sale.A deed from a public hospital under its corporate seal, must be proved in the sime manner as other deeds, it not being an institution of such notoriety that its seal will prove itself.
Where no possession had been taken under a mortgage, nor any interest paid, nor steps taken to enforce it for 19 years, it was held not to be a subsisting outstanding title, and that a jury might presume it satisfied.
A stranger, not claiming under a mortgage, cannot set it up to defeat the legal title.
THIS was an action of ejectment for lot No. 34. in Whitehall, in Washington county. The cause was tried at the Washington circuit, before Mr. Justice Yates, in June, 1812. ’ ’
It was admitted that the lessors of the plaintiff were heirs at law of Moses Martin, deceased; and that by an act of the legislature, (sess. 7. c. 64.) Philip Skeene and Andrew P. Skeeile, were attainted by name; and the act of attainder was read in evidence.
Mary Burrows testified, that her husband, Jeremiah Burrows, deceased, in his lifetime, resided at Whitehall, and, in December, 1784, purchased lot No. 34., in Skeene’s patent, of Alexander Webster, commissioner of forfeitures for the eastern district, for the consideration of 180 pounds, and received a deed from the commissioner, executed by him; that her husband died nine years ago, - . j g ? and that deed with other deeds were left in her possession, and she
p. 388
kept them locked up, until about two years ago, when the lock of *ke chest, in which they were kept, got broken; that she went from home leaving the chest in that situation, and after her return, having occasion to look into the chest, she discovered that the deed for lot No. 34. and one other deed were missing, and though she had made diligent search for them she had been unable to find them, and verily believed they were lost. Another witness testified that he was present when the deed was executed by Webster to Burrows for 400 acres of land, being.lot No. 34. in Whitehall, and saw the deed afterwards in possession of Burrows ; and believed that John Williams, deceased, and Moses Martin, also deceased, were witnesses to the deed.
The plaintiff then gave in evidence an exemplification of a judgment in this court, docketed the 23d September, 1786, against Jeremiah Burrows, in favour of D. and L. Van Antwerp. The judgment was for 561. 9s. damages assessed on a writ of inquiry, and 10Z. 4s. 9tZ. costs of increase, (making in the whole 66Z. 14s. 3d.) and in the entry on the roll, the damages were stated to amount in the whole to 66Z. 13s. 3d. Theji.fa. produced was for 66Z. 14s. 3d. on which was endorsed the return of the sheriff, that he had levied on the property of Burrows to the amount of 28Z. 18s. besides fees, &c. The defendant objected to the execution as evidence, on account of the variance between it and the judgment, as to the amount of damages, but the objection was overruled.
The plaintiff then gave in evidence a deed executed by the sheriff of Washington county, dated 26th June, 1787, for lot No. 34. including the premises in question, to Moses Martin as the highest bidder for 36Z. which recited an execution in favour of D. and L. Van Antwerp against Jeremiah Burrows, for 66l. 14s. 3d. of debt, and 1l. 14s. costs. The defendant’s counsel objected to the deed as evidence, on the ground Of its being dated before the test of the execution, and because of the variance between the execution recited, and the one produced. The sheriff was called as á witness, and admitted, though objected to; he testified that he sold the 400 acres, by virtue of the execution produced, and the recital of the 1Z. 14s. costs, was for his fees.
The. defendant’s counsel objected, that the plaintiff had not shown that the premises in question belonged to P. and A. Skeene, the persons attainted, but the objection was overruled.
Mary Burrows being called on the part of the defendant, tes-
V
p. 389
tiffed, that about 13 or 14 years ago, her husband took the land of John Williams in payment of a debt, who said he had purchased it of the heirs of Marlin. Her husband, after the purchase, put his son in possession of it, who, afterwards, sold it to one Wilber, who sold it to the defendant. The defendant offered in evidence a mortgage, dated the 22d July, 1772, from Philip Skeene to the “ Society of the Hospital in the city of JSew-York, in America,” to secure the payment of 263Z. Os. 7d. 1-2. payable with interest in one year from the date, and covering the whole patent, of which the premises in question are a part. This mortgage was objected to on the ground that from the length of time since it was executed, it was to be presumed to be satisfied, but the objection was overruled. The defendant next offered in evidence an assignment of the mortgage, dated 6th July, 1792, from the said society to John Williams, under their corporate seal, but the plaintiff’s counsel objected to its being read in evidence, as there was no evidence of the society being incorporated, or that the seal affixed to the assignment was their corporate seal, and on this ground it was rejected by the judge. It was proved that the defendant had been in the actual occupation of the premises for 21 years.
The defendant then offered in evidence a deed, dated 19th December, 1787, from Alexander Webster, commissioner of forfeitures for the eastern district, to John Williams, deceased, for the equity of redemption to lot No. 34. as forfeited by the attainder of P. and A. Skeene, which was objected to, on the ground that Williams having admitted that he purchased from the lessors of the plaintiff, and the defendant claiming under Williams, he was bound to show a conveyance from the lessors; but the objection was overruled by the judge, and the deed read in evidence.
It was proved that after the attainder of P. and A. Skeene, the different persons who had purchased the forfeited lands covered by the mortgage, agreed to pay their estimated proportions of the mortgage to the JSew-York hospital, and that several of them paid their proportions to John Williams, who then held the mortgage; and a receipt was produced, dated 4th May, 1793, from John ■Williams to Lydia Martin and Aaron Martin, executors, for 15?. 9s. 7d. their proportion of the said mortgage. It appeared, from a sworn copy of the report of sales made by A. Webster, commissioner of forfeitures, under the act of the 12th May, 1734, returned into the office of the surveyor-general, in pursuance of
p. 390384 It will be objected that the deed from the sheriff was dated before the execution, but on examination, it will be found not to be the fact. A mistake by the sheriff in reciting the execution will not vitiate the deed. The recital of the execution made no part of the title, and was unnecessary. The sheriff need not set forth the authority by which he sells.[4] The first section of the act of the 12th May, Ilf84, empowers the commissioners of forfeitures to sell all estates, &c. forfeited, and their deeds are declared to operate as a warranty on the part of the people to the purchasers, against all charges and encumbrances whatsoever. The variance between the judgment roll and execution, is in the conclusion of toto se atiingunt, and is a mere clerical mistake. It is amendable, and cannot affect purchasers under the judgment.[2] Again, the defendant has failed in the attempt to set up an outstanding title. The mortgage was not a subsisting title.[3] The mortgagee never entered, and no interest was ever paid. The. defendant was a stranger to the mortgage, and cannot therefore avail himself of it, to defeat the legal title. The deed from the commissioners to John Williams cannot avail the defendant; it was executed without authority, and appears to have been obtained by fraud. The variance between the execution, and judgment is fatal. We cannot intend that there was any such judgment; and the execution not having a judgment to warrant it,
the act of 21st March, 1788, that lot No. 34. containing 400 acres 0f land, forfeited by the attainder of P. arid A. Skeene, was sold to Jeremiah Burrows, for 180 pounds; and it was proved that the original return on file was in the handwriting of John Williams. In the record of the abstract from a book kept by the clerk of the common pleas of the county of Washington, containing the abstracts of the sales by the commissioners of forfeitures, John Williams was returned as the purchaser of lot No. 34. on the day of , for the sum of 180 pounds. In the record of the return in the.clerk’s office, there appeared to be an erasure; and the plaintiff’s counsel objected to its being read on .that ground, but the judge overruled the objection.
A verdict was found for the plaintiff, by consent, subject to the opinion of the court on a case containing the above facts.
Crary and Russell, for the plaintiff.
Z. R. Shepherd, contra.
p. 391was a nullity. A variance of one shilling is as fatal as a difference of one hundred pounds. Again, the deed of the sheriff recited an execution different from the one produced; it was an execution in debt, and for a greater amount. It was improper to allow the sheriff to explain the deed. In Simonds v. Catling,[4] the court say that there , , , must be some note or memorandum in writing ot a sale by a sheriff, otherwise, under the statute of frauds, nothing passes by such sale. Again, by the 3d section of the act of May, 1784, in case the lands forfeited are legally charged or encumbered by mortgage» executed before the 9th July, 1776, the commissioners are authorized to sell only the equity of redemption. They had no power, therefore, to execute an absolute conveyance to Burrows. By the act of 28th March, 1797, (sess. 20. c. 52.) the period of 5 years is limited for setting up any claim against forfeited estates. And the plaintiff derives title wholly under Skeene, whose estate was forfeited. The assignment of the mortgage ought to have been received in evidence. The legislature had by various acts recognised the Society of the New-York Hospital as a corporation, and it was not necessary to produce the proof of a fact so public and notorious. The lessors claiming under Skeene were estopped to deny his mortgage.
delivered the opinion of the court. The lessors of the plaintiff showed a valid title to the premises, deduced from Philip and Andrew P. Skeene, the common source of title set up by both parties. None of the objections to the soundness of this chain of title were well taken.
1. There was sufficient evidence of a sale of the premises, as forfeited property, by Alexander Webster, one of the commissioners of forfeitures, to Jeremiah Burrows, in December, 1784. The evidence of this fact consisted in the testimony of Mary Burrows as to the existence, loss and contents of the deed, and the official report of the sale made by Webster in pursuance of the directions of a statute, and on file in the surveyor-general’s office. The plaintiff next showed a judgment against Burrows, and a sale of the premises under an execution founded on that judgment, and a deed from the sheriff to Moses Martin, of whom the lessors of
p. 392
the plaintiff are the heirs at law. The judgment was docketed kt September, 1786, and the execution bore *est in August pre« ceding; and though it was suggested that there was a variance between the judgment and the execution, yet on examination no such variance appears, even if we were to admit that the existence of it would have been fatal. There is a difference of one shilling between the sum mentioned in the execution, and the sum mentioned in the toto se attingunt clause, at the end of the judgment record. But that clause is only a clerical addition of the amount of the judgment, and is no part of it; and if the sum in the judgment be different it will prevail. The judgment record is not set forth at large, but the amount of the damages assessed and of the costs taxed are stated, and as those costs are taxed as being of increase, and as it was formerly the practice for the jury to assess Qd. for costs, (on which was supposed to be founded the taxation of increase,) and as these costs of Qd. were endorsed on the execution, we have the best reason to infer that they were in the judgment record, and that additional item of sixpence would give the identical sum specified in the execution. The error in the calculation at the foot of the record is to be overruled or disregarded.
The execution was according to the ancient, practice, before the revision of the laws in 1788. It always issued against the goods and chattels, lands and tenements, promiscuously, and this was a consequence of the statute of 5 Geo. II. c. 7. which made real estate in the then English colonies, chargeable with debts, and subject to like remedy and process, by seizing and selling, as personal estate.
2. There was not any fatal misrecifal of the execution in the sheriff’s deed. Such recital xvas no necessary part of the deed, and a variance would not be material, nor affect the validity of the deed, so long as there was existing a sufficient power to warrant the sale. (Holt, Ch. J. in 3 Chan. Cas. 101. 9 Johns. Rep. 90 .) But there xvas no substantial mistake. The recital specified the true sum in the execution; and only called it debt; and that the sheriff was commanded to levy that sum and 34s. of costs. This last sum evidently referred to the poundage, xvhich, by the endorsement on the execution, the sheriff was like wise commanded to lexry.
3..The title set up by the defendant was clearly unavailing.
The deed from Webster to Williams, if otherwise genuine, xvas subsequent to the sale and deed to Burrows, and; consequently, of
p. 393
effect. The assIgnment of th~ mortgage to Williams was not ~1nly proved, as there was no proof of the seal of the corporation by whom it was alleged to have been assigned, and the seal did not prove itselj~ The i~ourt were not to know, and could not know, without proof, that the seal was genuine. It required the same proof as the seal of an individual; for the corporation in question was not an. institution of such notoriety as that its seal would prove itself, like that of one of our own courts of justice. (Peake’s Ev. 48. n. Q.) The mortgage was not to be received as a subsisting outstanding title. Assuming that Williams, by means of the possession of the mortgage, was to be considered as the agent of the mortgagees, yet no steps had been taken to put the mortgage in force, nor had any demand under it been made for upwards of 19 years previous to the trial; and from the payments which had been made at that time and before, and the silence of any claim under it, the jury would have been well warranted to have presumed it satisfied» The defendant did not set up any title under it, but he set up a title under Williams, who, at the time he parted with his assumed title, alleged that he had purchased the premises of the heirs of Martin. It was also held by this court, in the case of Collins v. Torry, ( 7 Johns. Rep. 278 .) that a stranger not claiming title under a mortgage, was not to be permitted to set it up to defeat a legal title.
The plaintiff is, consequently, entitled to judgment.
Judgment for the plaintiff.