Jackson ex dem. Sternberg v. Shaffer

11 Johns. 513 | N.Y. Sup. Ct. | 1814

Van Ness, J.

delivered the opinion of the court. The plaintiff having, in the first place, shown a sufficient title to the six acres, and fifty acres, described in the case, he isj entitled to recover both, unless the Kanes, under whom the defendant novv holds, acquired a paramount title, in virtue of the sale made under their judgment, against the JEuders and Borst; and this is the only question in the cause.

The lot of six acres,was never subject to be sold under that judgment, because it never belonged to Borst; nor is it even included in the deed from the sheriff to the Kanes, so that the taking possession of it, under the hab.fac.poss. was wholly irregular and unjustifiable. The plaintiff is, therefore, entitled to recover the six acres.

His right to recover the ffty acres, depends upon the regularity of the proceedings to revive Kane's judgment. The exceptions taken to these proceedings is, that the tertenants, and the original defendants, ought to have been made parties; and that, therefore, as against the former, they are irregular and void. This is not well founded. It was not necessary to make the tertenants parties.

If the execution in favour of the Kanes had been issued within the year and a day, any lands purchased and possessed by third persons, after the docketing of the judgment, might have been sold. Here, the plaintiff having lain by, for more •than a year and a day,- after he had obtained judgment, it became necessary to revive it against the original defendants,. which, -when revived, was of the same force and effect, and, of course, liable to be proceeded upon in the same manner, as if the time within which an execution might legally have been issued, had not been suffered to elapse. It is in the case of the ¿death of the original defendant, that the tertenants are to be made parties, and not where the original defendant is living. (Tidd's Prac. 1021. 1023. 2 Saund. 7. n. 4.) Admitting, ¡however, that the defendant could now be allowed to avail himself of any facts in his defence, which the tertenants might have pleaded in bar, provided they had been made parties to ¡the sci. fa. it would not alter the result,

It was argued that the bonds and warrants of attorney taken by the Kanes against Borst, and upon which judgment was entered in February, 1802, were to be considered either as a satisfaction, or an extinguishment of the judgment under which the Kanes sold. That they were taken and accepted as payment Js not true in point of fact; and that they did not operate as an extinguishment of the prior judgment is abundantly clear-The bond and warrants of attorney, and the judgment entered thereon, were not a security of a higher nature than the forxner judgment; and where a creditor takes a new security, of an equal or inferior degree, it is not an extinguishment of the original debt. (Manhood v. Erick, Cro. Eliz. 718.) S. C. entitled Norwood v. Grype, id. 727.) 6 Co. Rep. 44., Higgins’s Case. Philips, Adm. &c. v. Johnson, (8 Johns. Rep. 54.)

Another point was made in behalf of the defendant, which it is necessary briefly to notice, namely, that the sale under the judgment in favour of Ehle, which is the foundation of che plaintiff’s title, is void, because it is not shown there had been a previous levy by the sheriff. It nowhere appears that there had not been a levy; and if it were necessary, the court, under the circumstances of this case, would presume it to have been made. The result is, that the plaintiff is entitled go recover the six acres, and no more.

Judgment for the plaintiff, accordingly»