2 Johns. Ch. 172 | New York Court of Chancery | 1816
There are several objections to the sale by the executors of David Rea, each of which appears to me to be well founded.
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1. The sale was not authorized by the act of the 11th of April, 1808. That act only intended to authorize the executors to finish those executions of which “ the execution had been commenced by their testator, and had not been completed.” This was the object of their application to the legislature, and the act was not intended to be broader than the case required. It is most reasonable to give it such construction, for there was no necessity of any more extended provision, as the constitution and general law of the land had provided a known, suitable, and responsible officer for the execution of all' process that had not already been acted upon. If a sheriff seizes property under execution, and dies before the execution is completed, his representatives are responsible for the property sequestered; and it was fit and proper that they should *have the power to discharge the trust. It was accordingly the old and settled rule of law, that an execution was an entire thing, and when once acted upon, as by taking the property into possession, or, perhaps, by advertising it for sale, the person who thus began it must finish it, otherwise there would be great inconvenience to the sheriff and the party, and what had been done would be defeated and rendered of no avail. (Ayre v. Aden, Cro. J. 73. Clerke v. Withers, 1 Salk. 322. 2 Ld. Raym. 1072. Wilcox, &c. v. Pokinhorn, 1 Barnadis. 81. Lord Mansfield, in Cooper v. Chitty, 1 Black. Rep. 65.) In this case, there was no personal property which had been seized under the execution, and there was no act done, or step taken, in respect to the real estate. There was nothing which could be said to have been a commencement of the execution of the writ by the deceased
2. The master, as agent for the plaintiffs, had offered to the agent of the executors the amount of the execution and the fees before the sale, and that offer had been rejected. The subsequent sale was, therefore, entirely in their own wrong. They had no right to demand any more than the amount of the execution, nor to levy interest on the judgment. This was the well-known and settled rule of law. (Watson v. Fuller, 6 Johns. Rep. 283.) The act (sess. 36. c. 203. s. 50.) evidently recognizes the rule, and only makes provision for interest to be collected on judgments thereafter to be recovered. The act did not apply to this case, and the parties stood upon their legal rights as they then existed. These facts were all known to the defendant Sudani, and to those who hold under him, at the time that they purchased.
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*3. The special circumstances under which the sale was made, and which were also known to the purchasers, form, of themselves, strong ground for equitable relief.
The master sold one parcel of the land on the 23d of May, in the presence, and with the assent of the agent of the executors of Rea, and with a mutual understanding, (and that known to the purchasers,) that the sale should be valid, and that the execution was to be satisfied out of the proceeds. This agreement is sufficiently proved by the testimony of Bruyn and Dodge. If that agreement had not afterwards been complied with on the part of the plaintiffs, it would have been the duty of those claiming under the execution, to have applied to this Court, which had the direction and control of those proceeds. But that agreement was disregarded on the part of the agent of the executors of Rea, and the land sold under the execution, in violation of the rights of the plaintiffs, as well as of those who had purchased under the decree. The defendant Sudani, béfore he purchased, knew of the prior sale by the master, and of the agreement between the master and the agent of the executors of Rea, that the execution was to be satisfied out of that sale. He is, therefore, chargeable with a previous knowledge of all the equity of the case, and so are those who took under him. The sale, under all its circumstances, cannot be countenanced, nor can I suffer it to stand.
I shall, accordingly, decree, that the sale by the executors of Rea be set aside, as null and void; and that the amount
Decree accordingly.
