12 N.J.L. 300 | N.J. | 1831
The first and principal point in this causo is the just construction of the thirteenth section of the statute entitled “ An act making lands liable to be sold for the payment of debts.”
Both parties claim the farm in question under John Summers, the elder, 'whom they admit to have been seized and in possession on and before the fourth day of August, 1820. On that day an execution issued out of the Inferior Court of Common Pleas, of the county of Sussex, on a judgment signed on the 20th of July preceding, in favor of John Kinney and others, against the said John Summers, and David Summers, William Summers, John Summers, Jr., and Jacob Summers, was delivered to the sheriff of the county,
In the course of this cause no questions of fraud have been suggested or raised. Neither in the first judgment, nor in the delay to make sale under it, has any fraud been alleged. At the instance of the defendant, the judge, at the trial, overruled evidence offered by the plaintiff to show that the first judgment was delayed “at the request of the Summers.”
No question as to the want or effect of notice has been proposed. The purchasers at the first sale are defendants in the previous judgment.
The analogical argument drawn by the defendant’s counsel, from the effect of a sale of personal estate, is not applicable here. If a sheriff having a first and second execution sells chattels under the second, the purchaser, it is said, will hold them clear of the first execution, and the plaintiff therein must look to the sheriff for his remedy. This rule, however, ought not, as urged, to be extended to real estate. In chat
By the first and second sections of the act making lands liable to be sold for the. payment of debts, Rev. Laws 430, a judgment is made a lien on the real estate; and will, of consequence, remain so until legally removed. According to the sixth section, the money is to be made of the real estate whereof the *party was seized on the day when the real estate became liable, “or at any time after-wards, in whose hands soever the same may then be.” In Green v. Allen, 2 Wash. 280, in the Circuit Court of the United States for Pennsylvania, money raised by sale of real estate under a fi. fa. on a judgment in that court, was ordered to be first applied to the satisfaction of a previous judgment and execution, although after the levy, further-proceedings had been stayed by order of the plaintiff. In Ridgley v. Gattrell, 3 Har. and McHen. 449, Ridgley obtained judgment in May, 1787, against Burgess for debt and costs. Execution was not issued. In November, 1791, Brown’s executors obtained a judgment against Burgess for debt and costs. In March, 1792, a fi. fa. issued thereon, and a tract of land, of which the defendant, Burgess, was seized at the first judgment, was sold, at .public .sale, to Oattrel, who was the highest bidder and purchaser for a valuable consideration, and a deed was made to him by the sheriff. It was held in this case, which was on scire facias against Gatt-rel, the purchaser, as terre-tenant, to make the tract answerable,- that the judgment of the plaintiff, Eidgley,,
*These views of the subject evince, I think satisfactorily, that the operation of the thirteenth section should be our principal pursuit. ■ The section itself proves very forcibly that without it, the first judgment and execution would operate after the sale under the second. Otherwise the section is useless. From what judgments then is the purchaser at the sheriff’s sale to hold “ free and clear ” the real estate he lias purchased? “All other judgments, whatsoever, on or by virtue of which no execution has been taken out and executed on the said lands, tenements, hereditaments and real estate, so purchased.” What is here meant by an execution executed ? We ought not to understand, thereby, an execution under which all has been done which die writ requires, or the law permits ; under which a sale and conveyance of the real estate have actually been
I am of opinion the execution of Kinney and others was at the time of the sale under the execution of Feit, an execution executed on the farm in question according to the true intent and meaning of the thirteenth section; and hence Smith acquired a valid title by virtue of his purchase.
The defendant farther sought to impeach the deed under which the plaintiff claims title by certain evidence which he offered of the manner of conducting the sale by the sheriff; which evidence was, however, overruled by the judge; and the defendant now urges the rejection of this evidence as a ground for new trial. Upon the admissibility of this evidence, I have entertained .some doubts, not, however, amounting to a belief that it was improperly overruled. Inasmuch, however, as my brethren *are fully satisfied that the evidence was inadmissible, it is unnecessary for me to express any opinion.
Judgment for plaintiff.
1st. A judgment by confession, entered on that day, of the Inferior Court of Common Pleas in the county of Sussex (then extending over the said lands) at the suit of John Kinney, Jr., against the said John Summers, together with his four sons, David, William, John, and Jacob Summers. — • Which judgment was accompanied by the proper affidavit.
2d. A writ of fi. fa. sued out on said judgment, returnable to the term of August, 1820, and marked “ received 4 Aug., 1829, by Darrah, sheriff,” which was levied on the lands in question.
3d. A deed from William Darrah, late sheriff of Sussex, to Isaac Smith, the lessor of the plaintiff, dated 20th August, 1828, purporting to be founded on the j udgment and execution aforesaid.
The defendant gave in evidence an exemplification of a judgment, Daniel Feit v. John Summers, signed the 28th of April, 1821, a writ of fi. fa. issued on said judgment, returnable to May term 1821, endorsed to levy $300 with interest and costs ; and a deed for the premises in question from William Darrah, sheriff of Sussex, to David Summers, John Summers, Jr., William Summers, and Jacob Summers, dated the 30th day of April, 1822.
The question is, which of these titles is to be preferred?
The title of Smith, the lessor of the plaintiff, being derived under the oldest judgment, and also the oldest execution and levy, would undoubtedly be entitled to the preference unless prevented by the operation of the thirteenth section of the act making lands liable to be sold for the payment of debts, Devised Laws, p. 433. By this it is enacted that the purchaser, at sheriff’s sale, “his heirs and assigns, shall hold the lands, &c., by him or her purchased as aforesaid, free and clear of all other judgments,” &o., on or by virtue of
The preference which the law gives to claims spread upon tho public records over those originating subsequently, or' if of equal origin, less diligently pursued, is founded in justice and good policy. If a judgment be permitted to lie without execution more than a year and a day, the law raises such a presumption of satisfaction, that the plaintiff shall not have execution, without calling on the defendant to show cause to the contrary, if any he have. And between judgment creditors, the legislature have not permitted tho parties to repose in safety for even that length of time, but gives the preference to the execution first sued out and delivered to the sheriff, Revised Laws, p. 431, sections 3 and 4. So much the legislature have clearly done to enforce diligence in the parties, and to increase the notoriety of liens. And so much they could do without injustice; for so far the party has had the control of his claim, and of the remedies for its recovery, and if ho failed in diligence might with propriety be punished by the loss of his priority. But when he has placed his writ in the hands of the officer, who gives notice of his intention to appropriate certain property to its satisfaction, by levying on it, the party plaintiff' should not lose his priority by misfortune, mistake, accident, or even every species of negligence, on the part of the sheriff. It may be readily perceived that many circumstances may interfere and prevent a sale within any specified time, as the death of the sheriff, a mistake in an advertisement, a
The word executed, used in the act, does not 'uniformly mean, when applied to writs of fi. fa. a complete execution. It is ^perhaps more frequently used in reference to the first part of the execution of the writ, to wit, the levy. Our books are full of .instances of this use of the term. See 1 Wilson, 44; 2 Tidd, 912, 1072; Willes, 271; 6 Mod. 290, 298; 2 Term Rep. 44. And this use of it conforms to the mischief adverted to -in the preamble, that persons “ who have not taken out., or will not take out, executions on their judgments, ought not to hinder, or prevent, those who do, from having the proper effect and fruits thereof.”
To suppose that there must have been an actual sale of the premises, by virtue of the first execution, to preserve its lien, is absurd. The second sale would be then wholly nugatory, and the purchaser under it would have-no estate .at all in the premises. The legislature could not have contemplated that a second sale would take place under such circumstances, and would not have provided securities for the title passing under it, when no title at all could pass.
In the case of Maffit at the suit of Den 1 Halsted, 229, the Chief Justice says “ if the sheriff, who has the first levy, shall neglect or refuse to sell at the first day, then he who has the next levy shall sell subject to such prior execution.” I deem this a sound construction of the act; and, of course, that this reason for setting aside the verdict should not prevail.-
The next objection.to the verdict, taken by the defendant, is that the court overruled testimony offered by him, that the sheriff, in his conditions'of sale, had undertaken to adjourn the sale for a fortnight, in case the property should