Jackson ex dem. Sternberg v. Shaffer — 11 Johns. 513

Majority

p. 513

Jackson, ex dem. Sternberg and others, against Shaffer.

NEW YORK,

October, 1814.

Headnote

Where a judg» menfc Is re° vived by sda fa. against the original defendant, it IÍ3 not necessary to make the tertenants par* ties.

It is only necessary to join the tertenants where the original defendant is dead.

A new security of an equal or inferior degree is not an extinguishment of 8. prior debt.

A bond and! warrant of attorney on which judgment is entered, are not ais extinguishment of a previousjudgmenfc against the same defendant.

Where land Í3 sold under a. fi,. faand a deed executed by the sheriff^ the court may under the circumstances of the case, presume that it had been levied upon.

THIS was an action of ejectment, brought to recover a piece ef land in lot No. 27. in the patent granted to Abraham Van Horne and others, and another piece of six acres adjoining, in lot No. 11. in the same patent, in the town of Minden. The cause was tried at the Montgomery circuit, in September, 1813, before Mr. Justice Yates.

The plaintiff, at the trial, gave in evidence a judgment in the Montgomery court of C. P., in favour of John C. Ehle against Peter Borst, juu. for 220 dollars and 50 cents, docketed February 1st, 1802, an execution thereon, and a deed from the sheriff, under a sale on the execution, dated June 22d, 1802, to Isaac Ellmood, for the consideration of 182 dollars; the premises described as situated in Minden, bounded, &c. “ containing 50 acres more or lessalso a deed from Isaac Ellmood to the defendant, dated June 1st, 1803, for the consideration of 687 dollars and 50 cents, which conveyed six acres of land, part of lot No. 11. above mentioned, by metes and bounds, described to be in two pieces, one of 5 1-4 acres, and the other of 1 3-4 acres, and also the piece of 50 acres, part of lot No. 57., described, &c., said to contain 50 acres of land, more or less. By this deed the grantor covenanted, as to the six acres, to be in possession in fee-simple, Sec. and, as to the parcel of 50 acres, he covenanted for the peaceable and quiet possession thereof to the defendant for ever, he yielding and paying to Abraham Van Vechten the rent reserved in the lease thereof, and observing the covenants contained in the lease thereof given to Jeremiah Fan Alstyne by the said Abraham Fan Vechten, Sec.

The plaintiff also gave in evidence a judgment in the supreme court, in favour of A. Rush, against the defendant, dated the 15th of September, 1809, and an execution thereon, tested the 19th of August, 1809, returnable the second Monday of November, and a sale by virtue thereof of the defendant’s lands and tenements, to Peter Sternberg, one of the lessors of the plaintiff, and Jacob Smith, and a deed to them from the sheriff, dated March 31st, 1810, of all that farm, &c. in lot No. 27. in Fan

p. 514

Hornets patent, and part of lot No. 11., &c. in possession of the defendant, See. also a deed from Jacob Smith, conveying to Sternberg an equal moiety of the premises so conveyed by the sheriff’s deed.

The defendant gave in evidence a judgment of this court, docketed the 30th of October, 1798, in favour of James and Archibald Kane, against Peter Euders, Johannis Euders, and Peter Borst, jun. for 9,000 dollars debt, and 15 dollars and 84 cents costs, which was revived by scire facias on the 26th of December, 1803, and a writ of fi. fa. issued to the sheriff of Schoharie, tested the 28th of November, 1803, on which was endorsed a direction to the sheriff to levy 93 dollars and 69 cents of the property of Peter Borst, jun. with poundage; and a return of the sheriff was also endorsed, that he had levied 28 dollars of the lands and tenements of Peter Borst, jun. and nulla bona as to the residue. A writ of fi.fa. was also issued on the same judgment, directed to the sheriff of Montgomery, tested the 6th of February, 1804, on which was endorsed a direction to the sheriff to levy of the property of Peter Borst, jun. 58 dollars and 69 cents, with poundage; to which the sheriff of Montgomery returned that he had made of the lands and tenements of Peter Borst 50 dollars, and nulla bona as to the residue. The defendant also gave in evidence a deed from the sheriff of Montgomery to Archibald Kane, dated the 18th of June, 1804, for two pieces of land, one of which, being 100 acres of wood-land, sold for 30 dollars, and the other, being a piece of land now or late in possession of Jacob Shaffer, containing about 50 acres, sold for 20 dollars, the last piece of land being the premises in question.

It further appeared that a judgment was obtained in this court, in an action of ejectment brought by James and Archibald Kane, against the casual ejector, by default, and docketed, the 7th November, 1812. The premises, described in the demise of the lessors, were fifty acres of arable land, fifty acres of wood, &c. in Minden, Scc. and in which action, Peter Sternberg and Jacob Smith were the tenants, and entered into the consent rule. An hab. fac. poss. on that judgment, dated the 31st October, 1812, was returned by the sheriff, that he had caused possession to be delivered, &c.; and it was proved that by direction of the lessors, possession, was delivered to the defendant, of the lot of

p. 515

about fifty acres, and the defendant also requested the posses* sion of the piece of six acres, which was accordingly delivered, though Sternberg objected, that the defendant had no right to be put in possession of the six acres, as the recovery in the ejectment was only for the fifty acres.

It appeared that the judgment above mentioned, in favour of J. and A. Kane against Peter Euder, Johannis Euder, and Peter Borst, jun. was for a debt of 1,800 pounds, one third part of which was to be paid by each of the defendants; that on the 4th of October, 1799, P. and J. Euder paid their proportions of their judgment, and took the following receipt, signed by James and Archibald Kane: “ Received of Peter and Johannis Euder, at sundry times, 1,200 pounds, being in full of principal and interest for their part of a bond and judgment, given by them and Peter Borst, jun. the 24th of October, 1798, and we do hereby acknowledge the discharge thereon for the same Peter and Johannis Euder, and their heirs, executors, and administrators.”

It was proved that Borst had paid 1,400 dollars on the same judgment, and that afterwards, about the 29th February, 1802, judgments were entered on two bonds, with warrants of attorney, in favour of James and Archibald Kane against Peter Borst, and which were given on a settlement of accounts between him and J. and A. Kane, in which was included the balance due to them from Borst in the former bond and judgment against P. and J. Euder and Borst.

The judge being related to one of the persons incidentally-interested in the cause, declined giving any opinion on the evidence, or points arising in the cause; and a verdict was taken for the plaintiffs, subject to the opinion of the court on a case as above stated.

A. Van Vechten, for the plaintiff.

He cited Bac. Abr. Obligation, (D.) Tidd’s Pr. 1048.

Cady, contra.

delivered the opinion of the court. The plaintiff having, in the first place, shown a sufficient title to the six acres, and fifty acres, described in the case, he isj entitled

p. 516

to recover both, unless the Kanes, under whom the defendant novv holds, acquired a paramount title, in virtue of the sale made under their judgment, against the JEuders and Borst; and this is the only question in the cause.

The lot of six acres,was never subject to be sold under that judgment, because it never belonged to Borst; nor is it even included in the deed from the sheriff to the Kanes, so that the taking possession of it, under the hab.fac.poss. was wholly irregular and unjustifiable. The plaintiff is, therefore, entitled to recover the six acres.

His right to recover the ffty acres, depends upon the regularity of the proceedings to revive Kane's judgment. The exceptions taken to these proceedings is, that the tertenants, and the original defendants, ought to have been made parties; and that, therefore, as against the former, they are irregular and void. This is not well founded. It was not necessary to make the tertenants parties.

If the execution in favour of the Kanes had been issued within the year and a day, any lands purchased and possessed by third persons, after the docketing of the judgment, might have been sold. Here, the plaintiff having lain by, for more •than a year and a day,- after he had obtained judgment, it became necessary to revive it against the original defendants,. which, -when revived, was of the same force and effect, and, of course, liable to be proceeded upon in the same manner, as if the time within which an execution might legally have been issued, had not been suffered to elapse. It is in the case of the ¿death of the original defendant, that the tertenants are to be made parties, and not where the original defendant is living. (Tidd's Prac. 1021. 1023. 2 Saund. 7. n. 4.) Admitting, ¡however, that the defendant could now be allowed to avail himself of any facts in his defence, which the tertenants might have pleaded in bar, provided they had been made parties to ¡the sci. fa. it would not alter the result,

It was argued that the bonds and warrants of attorney taken by the Kanes against Borst, and upon which judgment was entered in February, 1802, were to be considered either as a satisfaction, or an extinguishment of the judgment under which the Kanes sold. That they were taken and accepted as payment

p. 517

Js not true in point of fact; and that they did not operate as an extinguishment of the prior judgment is abundantly clear-The bond and warrants of attorney, and the judgment entered thereon, were not a security of a higher nature than the forxner judgment; and where a creditor takes a new security, of an equal or inferior degree, it is not an extinguishment of the original debt. (Manhood v. Erick, Cro. Eliz. 718.) S. C. entitled Norwood v. Grype, id. 727.) 6 Co. Rep. 44., Higgins’s Case. Philips, Adm. &c. v. Johnson, ( 8 Johns. Rep. 54 .)

Another point was made in behalf of the defendant, which it is necessary briefly to notice, namely, that the sale under the judgment in favour of Ehle, which is the foundation of che plaintiff’s title, is void, because it is not shown there had been a previous levy by the sheriff. It nowhere appears that there had not been a levy; and if it were necessary, the court, under the circumstances of this case, would presume it to have been made. The result is, that the plaintiff is entitled go recover the six acres, and no more.

Judgment for the plaintiff, accordingly»