12 Wend. 57 | N.Y. Sup. Ct. | 1834
By the Court,
There are two points in this case made by the plaintiff: 1. That as both parties claimed title from Mattison, the defendant, through Bradley, whose tenant he was, and with whom he entered into a contract to purchase, at the time when Bradley took a deed from Matti-son, the defendant was estopped from denying that the title
1. The defendant stands in no better situation than Sheldon Smith ; and he could not deny the title of Bradley, who purchased of Mattison on the 2d June, 1820. At that time he admitted the title in Bradley, as derived from Mattison; yet he now pretends that at that very time, and for six years before, he was and had been the owner himself. If he had then the title it was his duty to have asserted it, instead of admitting it in Mattison ; he was estopped from setting up his own title afterwards. This is not like the case of Jackson v. Spear, 7 Wendell, 401. There is no pretence of mistake or imposition in this case. In that case the defendant, when he made the admission of the plaintiff’s title, made no claim himself to the lot; but there were conflicting claimants, and after agreeing to purchase of the plaintiff,, he became satisfied that the other claimant had the better title, and purchased of him. This case is not at all like that; the title now set up is much older than the conveyance from Mattison to Bradley; Sheldon Smith did not pretend ignorance of it when the admission was made, and there is no pretence that any imposi. tion was practised.
But if the defendant was at liberty to impeach the title which he had admitted, with a full knowledge of all his rights, still I think he must fail as he cannot avail himself of any defect in the notice of sale. The day appointed in the notice first published was Sunday. It is asserted that a sale on that day would be void, and therefore it is argued the notice was void. I cannot admit the assertion or the consequence. All acts and transactions are lawful, done on the Sabbath, unless prohibited, either by the common law or by statute. All judicial proceedings are prohibited on Sunday by the common law. The act of 1813, for the suppression of immorality, which was in force when the foreclosure took place, prohibits travelling, servile labor, and working, amusements of various kinds, and the exposure for sale of any- wares, merchandize, goods or chattels, with certain exceptions of small meat, milk,
Again; even if the sale on Sunday would be void, it does not necessarily follow that the notice would be void. It is not necessary that the sale should take place on the day mentioned in the notice ; the party instituting the proceedings has a right to postpone the sale ; he is expressly authorized so to do by the revised statutes, and it was so held under the former act, in which there was no express provision to that effect, Jackson v. Clark, 7 Johns. R. 225; where it is also said that the six months notice is not solely for the purpose of giving notoriety as to the time and place of sale, but to enable the mortgagor to raise the money. It had been contended by counsel in that case that if there could be any postponement, it must be for six months ; but the court did not assent to it, and gave the answer to the argument as above stated.
On both grounds I am of opinion that a new trial should be granted.