9 Wend. 338 | N.Y. Sup. Ct. | 1832
By the Court,
The plaintiff below undertook to shew title to the wheat in two ways: 1. By a judicial sale under his judgment and execution; and 2. As assignee of a mortgage. By the first, he acquired no interest in the wheat; and the execution being returnable in 30 instead of 90 days, was unwarranted by the statute, and void, 5 Wendell, 276; but by the mortgage, of which the plaintiff was assignee, he did become entitled to take possession of Jones’ part of the wheat, and this title is older than that of the purchase by Emmons under his judgment and execution. On the supposition, therefore, that Kelly and Jones were entitled to the crop, Smith, the plaintiff below, having the interest of Jones, was the owner of one third of the wheat, and the other two thirds belonged either to Emmons, as the assignee of Kelly’s interest, or to Farr, to whom Emmons had sold the
Judgment of Seneca common pleas reversed with single costs, and the costs to abide the event of a new trial.