Majority
p. 535Carter against Simpson. ALBANY, í>b. 1811.
Headnote
“ ———— A. brought an action of tresfoTdesfróybg á íoagh^tó^the" ptóütiff proved wason the land stable’s sale, at /'“was held that bouni^toprore prop61^ lnJhe proving a purchase at a con.= stable’s auction, without showing dev^v^i!*tytbe f°"i/taie by tiie offi?er. without. authority would not give a title tothe purchaser,IN error, on certiorari, from a justice’s court. The return stated that Simpson sued Carter before the ^ » ■* e justice, and declared for damage done to his hay, by the cattle of the defendant, which the defendant turned into the field where the hay was stacked, and in pulling down ' and carrying away the fence around the stack, &c.
The defendant pleaded not guilty; and the cause was tried by a jury. The plaintiff offered to prove his property in the hay, standing in a stack on the ground of the defendant, by purchase at auction, at a constable’s sale, on an execution against one Jarvis. The defendant objected to the testimony, without the production of the execution and judgment by virtue of which the sale was made. The , , . objection was overruled, and the plaintiff proved the sale by parol evidence. The defendant then offered to prove that the execution had expired, and that, at the time of the sale, the plaintiff in the execution directed the constable to have it renewed. This evidence was overruled : and the plaintiff proved that the constable offered the hay till (-1 , p . p and all the rest of the personal property ol Jarvis, for sale, and that it was all struck off together, to the plaintiff. . The jury found a verdict for the plaintiff, on which judgment was rendered by the justice.
Wendell, for the plaintiff in error. He cited 2 Johns. Rep. 46 . 48. 6 Johns. Rep. 169 .
Skinner, contra. He cited 2 Caines, 263.
As the plaintiff below never had possession of the hay, which was on the defendant’s ground at the time of the alleged injury, he was bound, at least, to show a right of property. The proof of a purchase at auction, at a constable’s sale, without showing the au
p. 536
thorny under which the constable acted, was not enough. If the constable had no authority to sell the hay, the vendee had no title. The books have gone so far as to say, tlíat a vendee under a lawful judgment and execution, shall not lose his property, upon a reversal of the judgment by writ of error. This was so ruled in Manning's case, (8 Co. 96. b.) But no case admits a title in the purchaser, when the sheriff acted without authority. On this ground the judgment below must be reversed.