85 N.Y.S. 609 | N.Y. App. Div. | 1904
This action was brought for the partition and sale of certain real property formerly situate in Westchester county, now in the borough of the Bronx, New York, and to remove a cloud upon the title.
At the trial the complaint was dismissed upon the merits, and the-respondent Bickford was adjudged to have good title to the premises, in question. From the judgment entered to this effect the plaintiff has appealed. There is no dispute as to the facts. So far as the same are material to the question presented they are substantially as follows : On the 4tli of April, 1853, Joseph Dixon.held the legal title to the premises,..and on that day a judgment was recovered by con
The conclusion at which we have, arrrivéd renders it unnecessary to consider or pass upon the questions raised as to the validity of the judgment and proceedings taken which resulted in the certificate of sale, because it may be assumed that such proceedings were
But we do not care to rest our decision solely upon this ground. The sale under the execution took place on the 26th of April, 1855. Schmidt became entitled under the certificate of sale to a deed on
Here the judgment recovered by Schmidt in 1853, and which is the only basis for the certificate of sale, having presumptively been paid, we think the same presumption must be indulged in that the judgment debtor redeemed from the sale and thereby destroyed the validity of the certificate. It cannot be that a certificate of sale given by a sheriff has a longer life or greater validity than a judgment of a court of record, or a contract under seal. We think the trial court erred in dismissing the complaint and in holding that the respondent Bickford is the sole owner in fee simple of the land therein described, and for the error thus committed the judgment appealed from must be reversed and a new trial ordered, with costs to appellant to abide the event.
Yah Bruht, P. J., O’Bbieh and Ingraham, JJ., concurred ; Hatch, J., concurred on last ground.
Judgment reversed and new trial ordered, with costs to appellant to abide event.
Note.— The rest of the cases of this term will be found in the next volume, SO App. Div.— [Rep.