Hallenbeck & Miller v. Garner

20 Wend. 22 | N.Y. Sup. Ct. | 1838

By the Court, Bkonson, J.

The statute authorizes a proceeding of this kind, “ where any person shall hold over and continue in the possession of any real estate which shall have been sold by virtue of an execution against such person, after a title under such sale shall have been perfected.” 2 R. S. 512, § 28, sub. 4. The applicant did not state facts enough in his affidavit to give the officer jurisdiction. Conceding that this remedy may be applied against one who comes into possession of the land under the judgment debtor, as well as against the judgment debtor himself, Birdsall v. Phillips, 17 Wendell, 474, it can only be where the third person holds as the mere servant or agent of the judgment debtor, or enters under title derived from him subsequent to the lien of the judgment under which the sale was made. Although the affidavit affirms that Hallenbeck and Miller hold under Haywood, and that Haywood holds under George Nooney, the judgment debtor, there is nothing whatever to show that Haywood’s right to the possession is not paramount to that which Garner has acquired under the judgment. For aught that appears, Haywood may have entered, and so may Hallenbeck and Miller, long before the judgments were docketed. Although the affidavit states that Nooney was the owner in fee of the property at the time the judgments were entered of record, that fact is not inconsistent with the supposition that Hallenbeck and Miller, or Haywood their immediate landlord, were in possession long before, and now have an unexpired term in the land. In all cases of summary process, where the court or officer does not proceed according to the course of the common law, every fact necessary to give jurisdiction must be distinctly alleged, or the proceeding cannot be upheld. In this case the proceeding before the recorder should be quashed, and restitution ordered.

Ordered accordingly.