Miller v. Moeschler — 12 N.Y. St. Rep. 703

Majority

p. 703

August Miller v. Ernst L. Moeschler. Henry Loechte v. Ernst L. Moeschler.

(Supreme Court, General Term, Fifth Department,

Filed January, 1888.)

Headnote

Execution—Sale under—Well not vest title in purchaser when JUDGMENT SET ASIDE.

A sale of rea'l property was made by a sheriff to satisfy the aggregate amount du>; upon three executions, and the property was hid in by the purchaser for a gross sum sufficient to cover the amount due upon the three judgments. Two of the judgments upon which the sale was made were subsequently set aside and vacated, fflld, that the sale could not become perfect so as to vest title in the purchaser.

Appeal from an order of the Monroe county special term, granted on the 28th day of March, 1887, setting aside certain certificates of sale issued and delivered by the sheriff of Monroe county to William H. Whiting. The real estate sold was owned by the defendant Moeschler, and the sale was made upon three several executions against him in the sheriff’s hands, and was sold upon the same collectively.

D. B. Beach, for app’lt; W. H. Whiting, for resp’t.

The order vacating and setting aside the certificates was granted upon motion of Moeschler, the defendant in the several judgments and the owner of the premises sold. ,After the sale was made, &nd before the order appealed from was granted, one of the judgments upon which the premises were sold, amounting to $1,377, was vacated and set aside on the application of Moeschler on the ground of irregularity. Since the order vacating and setting aside the certificates, this court, on the applica- * tian of Moeschler, has made another order setting aside one other of the judgments upon which the sale took place, which has been affirmed on appeal. See decision in Loechte v. Moeschler just rendered, post.

As it appears, that the sale of the real estate was made and predicated upon the aggregate amount due upon the three executions, and the same was bid in by the purchaser for a gross sum, sufficient to cover the amount due upon the three judgments, the sale cannot become perfect so as to vest title in the purchaser, for the reason that two of the judgments upon which the sale was made have been set aside and vacated. People v. Hagadorn, 104 N. Y., 516 ; 5 N. Y. State Rep., 782.

The order appealed from should be affirmed.

All concur.