Groff v. Jones

6 Wend. 522 | N.Y. Sup. Ct. | 1831

By the Court,

Sutherland, J.

The legislature have enacted that no more of any real estate shall be exposed for sale than shall appear necessary to satisfy an execution issued upon a judgmant. 2 R. S. 369, § 38. This provision can be considered only as directory to the sheriff, and the sale to a bona fide purchaser must be holden to be valid, although the requirements of the statute are not complied with. The only effect, when the purchase is bona fide, is to subject the sheriff to the penalty prescribed; but where the purchase is not bona fide, the sale will be set aside. Here real esfa¿e Worth ten thousand dollars was sold to satisfy a debt of one hundred dollars, and the property was so situated that a portion of it could have been conveniently sold separately, and would probably have brought a sum at public vendue more than sufficient to satisfy the older judgment; still the sheriff proceeded and sold the whole en masse, and it was bought in by junior judgment creditors, to whom the surplus of the purchase money was paid by the officer, by the direction of the defendant in the executions. We do not hesitate to pronounce this sale fraudulent, and to grant relief to the creditors who have been injured. It is not necessary to send them to a court of equity; we therefore order that the sale be set aside, upon the plaintiffs in the second judgment paying to the plaintiff in the first judgment the amount due to him, they receiving an assignment of such judgment; and if there be a refusal to execute such assignment, then that the sale be set aside absolutely.