97 N.Y. 93 | NY | 1884
The right of the defendants to their judgment assailed on this appeal rests entirely upon their right to contest the validity of plaintiff's mortgage and his title acquired thereunder. The defendant Bowe was a trespasser, if, on an execution against Carpenter, he took the property of McKinley; and the other defendants are equally liable since they indemnified the officer and directed the taking. Their attack upon McKinley's title is founded wholly upon the presumptions of fraud arising from the lack of an actual change of possession of the lathe mortgaged and afterward sold to plaintiffs. Whether the court were right in holding that there was no such actual change, or whether there was such dispute upon the facts as required a submission to the jury, we need not and do not now determine, for we have reached the conclusion that the defendants were not in a position to attack the transfer for fraud since they did not show themselves to be creditors of Carpenter, and *96 prove a judgment against him. The only answer made to this difficulty is that the plaintiffs gave no proof of a taking by the defendants, and were obliged to make out their case by resort to admissions of the answer which admitted, not a wrongful, but a rightful taking by virtue of a judgment and execution against Carpenter, which are fully set out in the pleading. If the plaintiffs made no case without resort to the answer to prove the taking, there is great force in the contention that they must take the admission as it was made, and not dismembered, and with a choice of the fragments. But it is not necessary to decide that question, since, wholly independent of that admission, there was evidence enough to have warranted a jury in finding a taking by the defendants. Bowe, it is conceded, was sheriff of the city and county of New York at the time of the alleged taking. On the 18th of January, 1881, notice in writing was served upon him asserting the title of the plaintiffs to the lathe, and demanding its possession. On the next day the sale took place in the presence of plaintiffs' attorney, who found on the premises, beside the auctioneer, a person who represented himself to be the defendants' attorney, and also a deputy sheriff, and Mr. Emmens, one of the defendants. Discussion followed between the plaintiffs' attorney and the attorney of the defendants, in which the sale by the latter was disputed and forbidden. A similar discussion was had with the defendant Emmens. When the auctioneer offered the lathe for sale, the plaintiffs' attorney again interposed, claiming title and forbidding the sale. One of the defendants nodded to the auctioneer and he announced, "I want you all to understand that if we sell this machine, whoever buys it will get a good and absolute title to it." It was knocked down to the defendants, "and the auctioneer said it was sold to Carmichael Emmens." The deputy sheriff, it is admitted, had an "alleged execution" in his hands against Carpenter, and in favor of Carmichael Emmens, by whom the sheriff had been indemnified. The proof shows that the deputy sheriff made preparations for the sale, and "began the sale." In all this there was quite enough to charge all the defendants with a trespass without the least reference to *97 the admission of a taking contained in the sheriff's answer. The plaintiffs' case, therefore, was made, and until the defendants put themselves in the position of creditors by competent proof, they could not assail plaintiffs' title as fraudulent. The judgment rendered, therefore, was erroneous. Both parties tried the case as if they were equally afraid of the truth. The defendants omitted to prove their judgment, and the plaintiffs gave no evidence showing the consideration of their note secured by the mortgage. On a new trial it may reasonably be hoped that all the facts will be disclosed, and the real merits of the controversy become apparent.
The judgment should be reversed and a new trial granted, costs to abide the event.
All concur, except RAPALLO, J., absent.
Judgment reversed.
