Jackson ex. dem. Stone v. Scott

| N.Y. Sup. Ct. | May 15, 1820

Spencer, Ch. J.

delivered the opinion of the Court. There can be no doubt that the sale and transfer of the premises by Elijah Scott, was fraudulent in regard to creditors, and therefore void: the counsel has not ventured to contend that the sale was not fraudulent, and the evidence so fully shows it, that the point may be dismissed.

The only question then is, whether, as Elijah Scott had only the possession of the premises, with a contract from the surveyor general, entitling him to a conveyance, on the payment of certain sums of money, which yet remain due, he had such an interest as might be levied on and sold on execution. In the case of Jackson v. Graham, (3 Caines’ Rep. 188.) the plaintiff’s title was deduced under a judgment, execution, and sheriff’s deed thereon to the lessor; the defendant in the ejectment being the person against whonj the judgment was rendered and execution issued ; and it was shown that before the entry of the judgment, the defendant had been, and then was, in possession. The defendant offered to prove, that one Day was the real owner of,the premises, and that the defendant had no interest in them. This evidence was rejected, and the plaintiff recovered. An application was made to set aside the verdict, and one ground taken was, that Graham was a mere tenant at will, and had no transferable interest, either by his own actor the operation of law. The Court denied the motion, and gave judgment for p]a¡ntjjf. saying, that the defendant under an execution became quasi tenant to the purchaser. We considered the purchaser entitled to all the right the defendant had in the premises, and to the possession as part of his right; and that this would he of ho prejudice to the real owner. Whether Elijah Scott was seised or not of the premises, was not a subject of inquiry; he was seised, or had a chattle interest in the land, liable to be sold. We have decided, that a mere equitable interest cannot be sold on execution; but if connected with the possession of the land, the legal interest, of Which the possession is evidence, may be sold; (7 Johns. Rep. 206.) The purchaser acquires all the debtor’s legal fights; and possession is a legal right. It becomes a different question, whether a court of equity will enforce un-equitable interest, which the debtor had in the land, at the-instance of the purchaser. A court of law will not inquire what title the defendant, under such circumstances, has. He is precluded from making the objection, that he has no title.

Judgment for the plaintiff.