Jackson ex dem. Whitlocke v. Mills — 13 Johns. 463

Majority

p. 463

Jackson, ex dem. Whitlocke, against Mills.

Headnote

inSte/' wto ioo dollars,in a vered byB. against C., and an execution was afterwards issuc.^on ®¿ut“lor .¿fdfr tion a. P1™h“’ the'trustee ’ of d¿ed"from°th! medmieiV con-b., by whom the 1,a! ad!anced; ed^poiTthi*1!p" ti4udfSnt inte"estedA'was ^'"’pof the same premises* and conveyed by the sheriff to A.', it was held, that A., having executed the trust, by conveyiti^theland^B,, when purchased by him at the first sale, was not thereby estopped from subsequently acquiring a title to the same premises, and might recover them, in an action of ejectment, against a person holding under B., and that, although B. forbade the second sale, the conveyance under it was not inope rative • at least, that it could not be inquired into in a collateral action, and could only be determined on a direct application to this court, or to a court tof equity. =

Where a person tikes a deed for landin his own name, but the consideration is advanced by a nether, ajtrust-resuits in favour of that other person, which may be proved by parol.

THIS was an action of ejectment, brought to recover a house and lot of land, situate in the city of Hudson. The case was tried before Mr. Justice Spencer, at the Columbia circuit, in * August, 1815.

The plaintiff claimed, under a sheriff’s sale, made by virtue of an execution in favour of John M. Harder, against one Richard Osborne, who was the original owner of the premises, The execution was tested the ISth October, 1816, and the sheriff’ was thereby directed to collect 140 dollars. The judgment upon which it was issued was docketed on the'3d August, 1807, andwas for the sum of 680 dollars debt, and 13 dollars and 56 cents costs ; and the deed from Reuben Swift, sheriff of the county of Columbia, of the premises in question, to the lessor of the plaintiff, bore date the 15th February, 1814. On the bond upon which this judgment was entered, the following endorsement was made at the time of the execution of it, to wit, <£ one hun

p. 464

deed dollars of the within bond to be for the benefit of Thomas Whitlocke,n the lessor of the plaintiff, to collect which Sum, with the interest, the above-mentioned execution was issued. 7 „ Prior, however, tó the sale upon that execution, an execution, had been issued against the same Richard Osborne, On a judgment in favour of some person whose.name was not stated in the case, but which was docketed subsequently to the. other judgment, under which the premises were conveyed by John .King, then sheriff oí Columbia, by deed, bearing date'before.the. deed from Swift, to the lessor of the plaintiff, who, at the sametime, conveyed the premises to Harder, under whom the. defendant holds.' The property, as was proved by Bingham, the deputy .sheriff who made the sale, Was bid off by the lessor, at the re-q> st pf Harder, and for his benefit;. and was sold: subject to Harder's judgment, of Which due notice was given by .Harder and Whitlocke, and the ¿consideration money was paid by Hard.er. At the sale under the first-mentioned execution, Harder exhibited the deed to himself, and forbade the sale,

A verdict was. taken for the plaintiff, subject to the opinion of the court, On the above fhets, aqd th.e cause was submitted toihe court without argument? ’ ...

delivered the opinion of the court, The case of Jackson v. Steenbergh, ( 1 Johns. Cas. 153 .,) shows that the parol evidence, given by. Bingham, was admissible ; and it was proved that Whitlocke was the mere'trustee of Harder, in taking the sheriff’s deed,, under the sale On the júnior-judgment; and the deed from Whitlocke to Harder was the mere execution, of his trust. Harder- only was beneficially éntrusted in that purchase, as it was made for him, and he paid the consideration money, Whitlocke never had any interest.under that deed, and, therefore, his execution of the trust Could not operate as an estoppel to any title he might thereafter acquire, in his own right, to the samé lands. Independently of the parol evidence, that the. first purchaser was subject;to the prior Ken, the law would produce that result. Whitlocke, t.heh, acquired, by his purchase under the senior judgment, a title paramount to that of Harder's under the junior judgment, unless Harder's forbidding the sajé Will render the sale, and deed under it,, inoperative. It may be well questioned whether he could forbid the sale, rightfully, as JfhiUócke was interested, in it jo the amount of J 00 dollars?

p. 465

that as it may, a sale actually took place, and the title passed to Whitlocke under it, ancfit is too late to question the sale, at all events, in this collateral way.

The only mode in which that question could arise, would have been on a direct application to this court, or a court of equity, to set aside the deed. The deed being warranted by the judgment and execution, we cannot now entertain the question, how far the sheriff erred in selling, although forbidden by the nominal plaintiff in the execution. The legal title is in the lessor of the plaintiff.

Judgment for the plaintiff.

Cases cited

Jackson ex dem. Kane v. Sternbergh 1 Johns. Cas. 153 N.Y. Sup. Ct. p. 464