18 Johns. 7 | N.Y. Sup. Ct. | 1820
delivered the opinion of the Court. The plaintiff claims title under the sheriff’s sale on a fi.fa. upon a judgment in this Court, in favour of Randall v. Thomas Davis, which, according to the exemplification by the clerk, was signed on the 2d oí May, and filed and docketed on the 22d of May, 1816.
Th o fi.fa. directed the sheriff to sell the lands whereof Thomas Davis, (one of these defendants,) was seized on the 2d of May, 1816, &c.
There was also another judgment in the Common Pleas of Onondaga, in favour of Touslcy, against the same defendant, and & fi.fa'. thereon, in which a similar mistake appeared in making \he fi.fa. overreach the filing and docketling of the judgment.
This suit was originally against Thomas Davis alone, as tenant in possession, and Anthony Davis was admitted as co-defendant, claiming to be landlord, &c.
The first question on the trial was, whether the mistake in the executions was fatal ? I reserved that point; and in regard to the first judgment, the clerk now certifies that he made a mistake in the exemplification, as to the time of filing the record of judgment; that it was on the 2d, and not the 22d of May, 1816. So that even admitting the objection at the trial to.have been w'ell founded; yet it is now obviated, and it would be useless to send the cause to a new trial for that error.*
I incline to think, however, that such an irregularity in the fi.fa. would not invalidate the title derived under the sheriff’s sale. 1 do not perceive that it could injure any person.
The 2d objection at the trial was, that the deed was executed to the lessors of the plaintiff by a deputy sheriff, without showing any special authority to do that particular act. This objection was overruled; and I see no reason to doubt
The defendants admitted the actual possession of Thomas Davis, one of the defendants; but contended that he had executed a mortgage of the premises to Anthony Davis, prior to the judgments under which the plaintiff claimed, and offered the registry of mortgages to prove such mortgage, which was rejected as incompetent evidence.
The defendants then gave in evidence a covenant whereby the lessors of the plaintiff recite that Thomas Davis had executed such a mortgage to Anthony Davis ; and in which covenant they stipulate, that in consideration that Anthony Davis had agreed to allow the judgments to take priority over his mortgage, they, (the lessors of the plaintiff,) would stay executions for two years, from the 9th of June, 1817; provided the interest on the amount of the judgments should be paid yearly. One year’s interest, according to this covenant, fell due on the 9th of June, 1818 ; and the premises were sold on the executions, on the 13th of August, 1818. No evidence of payment of interest was offered ; nor was there any evidence that the mortgagee had ever come to the actual possession under his mortgage.
The covenant to stay execution is not available in ejectment. If that stipulation was violated, the defendants should have applied to the Court to set aside the execution: or might have had relief in chancery. But here is no evidence that the covenant was broken on the part .of the lessors of the plaintiff. The presumption is, that the interest was not paid ; and, therefore, they had a right to issue execution, &c.
The utmost effect of the covenant, in this action, was to prove, by the recital, the existence of such a mortgage. But even then, the equity of redemption might be sold, and was actually conveyed to the lessors of the plaintiff under those executions; and they are entitled to the possession which the mortgagor holds.
Besides, although the existence of an absolute deed or lease, may be proved by a recital, against the party making
But whether there be such an outstanding mortgage or not, the plaintiff is entitled to recover the possession, as against the mortgagor, whose title, more or less, has been sold to the lessors of the plaintiff on a fi. fa. against such mortgagor in possession ; añd the mortgagee having been, made co-defendant, makes no difference, unless it be shown that there was an actual transfer of possession from the mortgagor to the mortgagee, which is not pretended in this case.
We are, therefore, of opinion, that the plaintiff is entitled to judgment.
Judgment for the plaintiff.