Majority
p. 162Sandford against Roosa.
Headnote
A. has four judgments against c.,and judgment two neof A.’o oíItTandt"o líatír'b.^a! tinpt (,n judgments, under w lien toe lauds of c. are eeisrd aud ad-perused for iheu issues añ h!sei'judgmen°tn; undcrDtheSexed and^pui'cimsed byB , and it is expi.’i'Siy stated m the sheriff’s deed, that the land was $xecutiona.A'6 paM t'avtffof money* to*3¿v h?s executions^ the residue*to sati.-fy B’s execution; m an action by a. against sheriff, to recover the residue, it was held, that the defendant was precluded, by his deed, from denying that the sale bad been made under the plaintiff’s executions; and that the plaintiff was, under the circumstances of the case, entitled to recover the balance of the purchase money.But, if seems, that a sale, even of land, on an execution issued on a junior judgment, would be valid, and the sheriff thereby renders himself liable to the party whose execution is postponed.
So, a sale of chattels on a junior execution is valid, and the only remedy of the party whose execution was first delivered, is by an action against the sheriff.
THIS was an action of assumpsit, brought against the de- . puty sheriff of the county of Sullivan, to recover certain money which had been levied by him under an execution issued by the plaintiff against one Burr.
The cause was tried at the Sullivan circuit, in September, 1814, before Mr. Justice Yates, and a verdict found for the plaintiff, subject to. the opinion of the court on the following cage;
The plaintiff had recovered '-four judgments against Burr ; ^ _ T>. two m the court or common pleas of Sullivan county, one tor 318 dollars and 65 cents, and the other for 99 dollars and 24 cents, which were both docketed on the 9th of August, 1813; and two in this court, one for 333 dollars and 87 cents, dock-ete(i °n the 2d of September, 1813, and the other for 491 dol¡ars an(j 15 cents, docketed on the 6th of September, 1813: 7 . • n and one Couch had also obtained a judgment against Burr, in , . , , , ’. , .. this court, for 424 dollars, debt, and nine dollars damages, which was docketed on.the 27th of August, 1813.
Writs oí fieri facias, in favour of the plaintiff, on the above judgments, were delivered to the under sheriff on the 12th of November, 1813, who, thereupon, advertised a farm of Burr to so'^ on the 6th of January, 1814, by virtue of sundry executions. On the same 6th. of January, and before the sale, _ ,,, . , , , , , a fi.fa. issued on Couch s judgment, and was delivered to the
p. 163
tinder sheriff. The land was sold for ],2f5 dollars,, and purchased by Couch, and a deed for the same was executed by the under sheriff in the name of the defendant, in which all the plaintiff’s executions were recited, and stating that the land had been sold under them, but talcing no notice of Couch's execution. The amount of the sale was received by the defendant, who paid to the plaintiff’s attorney the amount of the three oldest executions in full, and 217' dollars and 63 cents on the fourth; and retained in his hands the balance of the purchase money, being (beside his fees) 245 dollars and 77 cents, on account of Couch's execution, which he refused to pay to the plaintiff, but paid it to Couch.
Couch was present at the sale, and insisted that the under sheriff should sell by virtue of his execution as well as the others; but the under sheriff said, that as he had seized and advertised the land under the plaintiff’s executions, he could sell only under them, and declared that he should and did sell by virtue of them only; and mentioned to the people present, before, and at the time of the sale, that he had received an execution from Couch on a judgment older than two of the plaintiff’s judgments, and younger than the other two, and that he conceived that Couch's judgment would be a lien or encumbrance on the land after the sale.
P. Ruggles and J. Duer, for the plaintiffs.
Sudam, contra.
delivered the opinion of the court. The deed executed by the defendant’s , deputy, and which is as binding upon him as if executed by himself, conclusively shows, that the sale was made under the plaintiff’s executions, and not under Couch's execution. The deed, then, is an admission of the most solemn nature, that the defendant raised the money on the sale of the debtor’s land, upon the plaintiff’s executions, and he is concluded from controverting that point.
If A. and B. have two several judgments against C., and they take out writs of fi. fa., which are both delivered the same day, and the sheriff executes that which was last delivered, by making sale of the debtor’s goods, such sale shall stand good; and the only remedy the one whose execution was first deliren;
p. 164
ed has, is by action against the sheriff' This was so held in the case of Smallcomb v. Cross & Buckingham, (Carth. 419, 420. 1 Salk. 320. and 1 Lord Raym. 251.) and this, too, since the statute of 29 Car. II, c. 3. p. 16., which enacted, that no writ of fi.fa. should bind the property of goods, but from the time of the delivery thereof to the sheriff. That statute was passed to obviate the injustice, as respected bona fide purchasers, of executions binding the property from the teste day of the writs, and it has al ways, since, been held, that the goods were bound from the delivery of the execution to the sheriff. The case cited, therefore, applies; for if the sheriff, as regards goods, can make a valid sale on a junior execution, notwithstanding the precedency of the senior execution, so he can sell lands which are bound from the docketing of the judgment, upon an execution issued pn a junior judgment, and render himself liable to the party whose execution is postponed. It is not, however, necessary, in this case, to go so far. The judgment creditor who had two judgments older than two of the plaintiffs, purchased under all the plaintiff’s executions. He agreed to give for the property 1,275 dollars, to be applied to the plaintiff’s executions. This is evident, not only from the deed itself) but ■ from the paroi proof. The sale did not, in fact, proceed at al! on Couch’s execution. To permit the sheriff to apply part of the money bid, to satisfy Couch’s execution, would render the situation of the judgment creditors extremely unequal ; for, whilst the plaintiff reposed himself on the fact, that the property was selling exclusively on his executions, and would, therefore, have no peculiar inducement to bid beyond the amount of his own executions, Couch may have, probably, purchased the only property from which the plaintiff could expect to have his judgments satisfied, and Couch may have not only all Burr’s property at an under value, but his execution paid out of .the moneys, really, and in fact, bid on the plaintiff’s executions. .
In any point of view in which the case can be placed, I am satisfied that the plaintiff ought to have judgment.
Judgment far the plaintiff.