Jackson ex dem. Ten Eyck v. Walker — 4 Wend. 462

Majority

p. 462

Jackson, ex dem. Ten Eyck, vs. Walker and others.

Headnote

The interest in lands of a cestui que use may be sold by execution.

It is not necessary, in the return to an execution by virtue of which lands have been sold, particularly to describe the land sold ; the identity of the property may be shewn by parol,

A variance between the judgment and execution being amenable, cannot be taken advantage of on a trial for the recovery of land sold by virtue of the execution.

This was an action of ejectment, tried at the Yates circuit in February, 1829, before the Hon. Daniel Mosely, one of the circuit judges.

p. 463

The plaintiff shewed title to the premises by the production of a sheriff’s deed under a sale on a judgment obtained by the lessor of the plaintiff against Frederick Probasco and Aurelia his wife, docketed 7th September, 1826. The judgment was on a promissory note given by the wife of Probasco whilst sole for the sum of $412,36. The defendants objected to the execution under which the sale was had, on the ground of variance; the judgment being for $533,17, and the execution for $533,11. The seisin of the defendants also was stated on the 4th October, 1826 ; whereas the record appeared to have been filed on the 7th September, 1826. They also objected that the return endorsed on the execution was insufficient in not describing the premises sold, and insisted that parol evidence was inadmissible to identify them. The objections were overruled, and the identity of the premises sold and conveyed, proved by the deputy who sold the same. The wife of Probasco had been in possession of the premises since 1819. Early in 1824, she intermarried with Probasco : since when he and his wife, together with the defendants, her children by a former marriage, have been in possession of the premises. (The defendants had been admitted to defend as landlords.)

The defendants produced a deed of the premises in question to them from Israel Arnold, (under whom the possession of the wife of Probasco was obtained and held,) bearing date 28th April, 1824.

It was then shewn, on the part of the plaintiff, that in 1816, Thomas Walker, the former husband of Aurelia Probasco, entered into a contract with Israel Arnold for the purchase of the premises in question, and paid $25, in part payment of the consideration money. In 1819, Walker died, having paid no more towards the purchase, and the contract having become forfeited by its items. He left his widow in possession of the premises, with whom resided the present defendants and the children of a former husband of the name of Todd. The contract for the purchase of the premises was renewed with the widow, and she occupied the land; her children by her husband Todd laboring on the farm, and having under her the control of the business. Arnold proved the

p. 464

payment of the $25 by Walker, the original contractor, of about $gQ; ¡3y the labor of one of the young Todds, and of the residue of the consideration money in cattle and money received ^"rom family ; it appearing that one cow had been received of the defendants which belonged to them. At the time of the execution of the deed, Mrs Prohasco said that she wished the conveyance made to the defendants, to prevent the land being taken to pay Probasco’s debts; and it was also shewn that she had said that she did not mean to pay the note on which the judgment was obtained until a mistake which she alleged existed was rectified. The evidence of the declarations of Mrs. Probasco was objected to, but received subject to the opinion of the court. The jury found for the plaintiff subject to the opinion of the court.

J. Taylor, for plaintiff

H. A. Wisner, for defendant.

By the Court,

The variance between the judgment and execution was a clerical mistake' and amendable. (5 Johns. R. 100.) As to the objection that the premises sold should have been described in the return to the execution, and that parol evidence was inadmissible to shew the identity of the premises sold and conveyed by the sheriff’s deed, I find no authority requiring the land to be particularly described in thq sheriff’s return : it must be described in his advertisement of sale ; but even should the sheriff not comply with the directions of the statute in that respect, his neglect would not affect the title of the purchaser at the sale und er the execution.

On the trial, the declarations of Mrs. Prohasco shewing that the object of taking the deed in the name of the defendants was to avoid the payment of the debt due the lessor of the plaintiff and to secure the property from Probasco’s creditors, were admitted in evidence subject to the opinion of this court. If this was proper evidence, it was so because the defendants derived title to the property through their mother, and that she was the owner and in possession thereof at the time. It seems to me unnecessary to discuss this ques

p. 465

tion. There can be no doubt that when the judgment was obtained against her and her husband, she had an interest in the land on which the judgment became a lien. (9 Cowen, 85.) She having paid the consideration and procured the deed to be executed to the defendants, they became seised to her use in trust for her, and her interest was the subject of sale by the sheriff. (1 R. L. 74.) Without enquiring, therefore, into the question of fraud, there is enough shewn to authorize a recovery. The plaintiff is entitled to judgment.