Hewson v. Deygert — 8 Johns. 333

Majority

p. 333

Hewson against Deygert.

Headnote

ed^against a debond, payable by execution ’ was ‘the amount°due st,mentad ^ ¿ tile defendant’s, worth 7,000 dollars, which was purchased by A. for i,6~odollars, deií'Sh Another w.aa ^e^moanT'd Ct pn^ the second the same tract of taken by the the-¡¿d’ for saie™1^" u„%r first fa!e> aPPlie(l to the court, on apfidavit, to stay all the land; but the huerferefsTying Jtie musTbe his leSat ^ But it seems„ question, in the chaserunderthe first sale is no longer bound the judgment; it being presumed that the land sold for its value, and the purchase is to be considered absolute, in regard to the lien or judgment; that the proper course in all sales of real and personal property, is to sel! so much of the property chargedas will probably satisfy the execution, and which can conveniently and reasonably be sold separately-

HILDRETH, (Attorney-General,) in behalf of David I. Zeilly, and Joseph Spreaker, moved, that all sales of lot No. 4. in Van SlycPs and Depeysteps patent, in the town of Palatine, in the county of Montgomery, under a fieri facias issued in the above cause, be postponed indefinitely, or forbidden.

_ In the affidavits which were read, the following facts were stated. On the 6th February, 1811, Zeilly and Spreaker purchased, for 1,670 dollars, the lot No. 4. , , , . , . „ , at a sheriff’s sale, under an execution issued m February vacation, 1810, in the above cause, and under another execution issued in August vacation, 1810, at the suit of I. A- Kane, against Deygert and one Henry Deill. At the time of the sale, the sheriff had in his hands, another execution in favour of Robert R. Henry against Deygert, on a judgment obtained subsequent to the other two. The proceeds of the sale amounted to about 500 dollars, over and above thfc ,amount of the two first executions, and a considerable part of the 500 dollars had been apy _ _ 1 plied towards satisfying the third execution. At the time of the sale, Zeilly and Spreaker did not know that more money was or would become due on the first judgment. I. £s? A. Kane are alone interested in all the judgments. The same lot, has again been advertised, under an execution issued on the first judgment, to collect another instalment due on the judgment, which has become due since the sale above stated. Zeilly and Spreak

p. 334

er, since their purchase, and before the present execution issued, had bargained and sold the lot.

The affidavit, on the part of the plaintiff, stated, that the execution in this cause, is to collect the half of what was due on the two first instalments of the bond on which the judgment was entered; that the lot sold is worth 7,000 dollars, and that it was understood from Zeilly and Spreaker, that they purchased for the benefit of the de-' fendant. The present execution has been issued for half of the instalment due, or about 509 dollars; Deill, the other defendant, having engaged to pay the other half, and that the defendant has no other means to pay what is due.

Bleecker and Sedgwick, for the plaintiff.

It is not requisite that the court shoiild interfere in this summary way, by rule, to prevent the sheriff from selling property on execution which is alleged not to belong to the defendant. The party having title has his "remedy by action, if he sustains injury, and no sale by the sheriff will affect the title to lands not subject to sale under the execution. But though the motion is denied on this ground, the court think proper to intimate their impression on the question which has been raised, lest the parties may be misled by their silence. They give no decided opinion, as the point may possibly hereafter come before them in a regular course of litigation; but, under their present view of the subject, they consider that the lands in question, in the hands of the purchasers are no longer bound by the judgment. It is to be presumed, that the lands sold, under the former execution, for their value, and the purchase is to be con- • sidered as absolute, in respect to the lien or judgment under the authority of which they were sold. The sale.extinguished the lien to the lands sold. The proper course, both on sales of real and personal property, is to

p. 335

aell only so much of the property charged, as will pro- .... - r V . , , . , . r , bably satisfy the execution, and which can conveniently and. reasonably be sold separately. A party who sells under a power, is not bound to sell, at once, all the property bound by the power, and in many cases, it would be an act of great oppression to do it. (Co. Litt. 113. a. 1 Caines’s Cases in Error, 18. Noy, 59.) But if he does, do it, he ought not to be permitted to sell the property a second time, to satisfy new and growing instalments. If he wishes not to exhaust at once his resources under the lien, he should sell no more of the estate than was requisite to satisfy the instalment due.

Motion denied.