17 Johns. 351 | Court for the Trial of Impeachments and Correction of Errors | 1819
The single question in this case is, whether Smith had such an interest in the land contracted for with Birdsall, and which the latter had contracted for with Atkinson, as was liable to be sold on execution, or as was bound by the judgment in favor of Harison 1 If he had not, then there is an end of all the other points raised by the appellant; for his right to relief depends entirely upon the legal effect of Harison s judgment on the interest which Smith had in these lands. It is well settled, that a mere chose in action cannot be levied on and sold by execution. (4 Johns. Rep. 96. 9 Johns. Rep. 42.)
#It is true, that since the statute of 27 Hen. 8. ch. 10. the cestui que use is the real owner of the estate, and his interest is bound by a judgment, and may be sold on execution ; and our statute concerning uses, (1 N. R. L. 72. 1 Rev. Stat. 727. ⅝ 47.) contains the provisions of the British statutes of 19 Ih n. 7. ch. 15. 27 Hen. 8. ch. 10. and 29 Car. 2. ch. 3. sec. 10. But it is insisted, that the fourth section of our statute concerning uses, authorizes the sale which took place under Harison’s judgment and execution, and that the appellant, as the purchaser, became vested with all the rights of Smith as a cestui que trust in the lands articled for with Atkinson.
This section provides, “ that the sheriff, upon any writ or precept upon any judgment, may do, make, and deliver execution unto the party suing, of all such lands, Ac., as any other person is seized or possessed, to the use, or in trust for him, against whom execution is so sued, like as the sheriff' might if the party against whom execution shall be so sued had been seised of such lands, of such estate ás he is seised of, in the use or trust at the time of the execution sued; and such lands, by force and virtue of such execution, shall accordingly be held and enjoyed, freed and discharged of all incumbrances of such persons as are so seised and possessed, to the use, or in trust, for the person against whom such execution is sued.” This is the substance of the section. It is very certain, that it does
The idea thrown out, on the argument, that the estate did vest in Birdsall, and, afterwards, in Smith, as far as the consideration money paid, and that it remained in Atkinson, in regard to that part of it which was unpaid, is a novelty in the law, without any authority or reason for its support. It. supposes a community in the use, partly in the vendor and partly in the vendee, in proportion to their interests in the estate. It cannot admit of a doubt, that the statute embraces those cases only, where the entire estate, out of which the use arises, vests in the cestui que use, in consequence of his having paid the whole consideration money; and I have met with no case or dictum countenancing the doctrine of a divided use, vested in the vendor and vendee. We have been referred to Sugdcn, 120. for the principle, that equity looks upon things agreed to be done, as done ; and that when a contract is made for the sale of an estate, equity considers the vendor as a trustee for the purchaser, and the purchaser as a trustee for the purchase money, for the vendor. This, however, is merely so for the purpose of affording the requisite remedy upon contracts, and the doctrine has no connection with, or relation to, the statute of uses. It is an artificial rule adopted in equity to coerce parties to the fulfilment of their contracts.
I fully accede to the proposition laid down by the chancellor, that the fourth section of our statute of uses, was taken from
This being the unanimous opinion of the court, it was thereupon ordered, adjudged, and decreed, that the decree of the Court of Chancery be affirmed, and the appeal be dismissed : and further, that the appellant pay to the respondents one hundred dollars, together with their costs to be taxed, for their damages and costs, in defending the appeal; and that the record be remitted, &c.
Decree of affirmance,
Vide Jackson, ex dem. Stone, v. Scott, 18 Johns. Rep. 94. A person in the possession of land, under a contract for the purchase and sale of it, has an interest in the land which may be sold on execution. The defendant in such case becomes quasi tenant to the purchaser, and cannot object that he has no title. Ingalls v. Lord, 1 Cowen, 240. Jackson, ex dem. Cary, y. Parker, 9 Cowen, 85. Jackson, ex dem. Ten Eyck, v. Walker, 4 Wendell's Rep. 462.