1 Cole. & Cai. Cas. 346 | N.Y. Sup. Ct. | 1804
delivered the opinion of the court. The two lirst objections go to the form of the execution, and, considering the circumstances attending this case, the plaintiff ought injustice to be held strictly to a legal title. He was the attorney who sued out the execution, and the second sale was made on short notice, if indeed any notice was given, and he himself became the purchaser. The plaintiff is, therefore, properly chargeable with notice of every irregularity attending the execution. Prior to this motion, a rule was granted to amend the fi.fajoj making it a testatum; but as the rule was granted upon the express condition of being without prejudice to the objection to be raised in this case, and which was then pending for argument, the court are justified in putting the amendment *out of view. And there can be no doubt but that the fi. fa. ought to be set aside for irregularity, on the ground of the first objection, as the cases of Allen v. Allen, and Brand v. Mears, (Bl. Rep. 694; 3 D. & E. 388; see also Barnes, 209,) go that length even after execution executed.
The second objection to this y?, fa. that it bears test out of term,
Tbe act directing the sale of real estates on execution, is rilent as to a conveyance from the sheriff; and yet a conveyance upon such sales is dictated by tbe same policy that applies to all other alienations of land. Without a deed or note in writing, there would be no written document of the sale ; for, in the first place, it is not requisite to the validity of the proceedings on execution, that the writ should ever be returned; nor is it requisite, even if a return be made; that the sheriff should specify with certainty the particular hands sold, or the name of the purchaser. It would be sufficient to state, that, of the lands and tenements of the defendant, he had caused to be made the debt and damages specified in the writ, as he was thereby commanded. If, therefore, the estate passes upon the sale, without any writing whatever, the general policy of the law would, in this instance, be contravened, and would bé productive of manifest public inconveniences. In the county where the lands in "question lie, every conveyance, whereby any lands in that county may be any way affected, in law, or equity, shall be deemed *void against any subsequent purchaser, or mortgagee, for valuable consideration, unless recorded. (2 Rev. Laws, 263. The present case is not within the act, because, liere is no subsequent purchaser to contend with; but cases of that kind must often rise, and if sheriffs’ sales be not within the provisions of the act, it would work very great imposition and fraud. A purchaser would go to the records, and if he found no conveyance from the defendant, he would naturally conclude he might purchase in safety. But if a sheriff’s sale
The case in which Lord Hardwicke is said to have ruled as broadly as stated, is quite obscurely reported. 1 Bos. & Pull. 307; 1 Esp. 101; 1 Pow. 271, 272. The agreement must have been made before the' master, or acquiesced in, in court; and it seems to have been more like a consent upon record than any thing else. At any rate, we cannot consider that observation in chancery, as a sufficient authority to set aside the plain letter of the statute.
We apprehend the general practice has been different and that upon sales, under the direction of a master in chancery as well as sales by sheriffs at law, the sale has uniformly been consummated by a conveyance.
This general usage ought to have great weight in a case where a statute is susceptible of two constructions; and especially, when the literal interpretation, and perhaps the reason of the thing, is in favor of the construction adopted in practice.
The minute provisions in our statute regulating sales on execution, and even the facts in the very case before us, are sufficient to show, that these kinds of sales are equally within the danger of the mischiefs which the act sought to prevent. The court of chancery, (3 Ves. 712,) itself has latterly admitted that it had gone rather too far in permitting part performance, and other circumstances, to take cases out of the statute of frauds. We are of opinion, therefore, that a sheriff's sale is within the statute offrauds.
There was an ancient principle of the common law, that would, if it applied, have superseded the necessity of a deed. It was a rule, that where a thing took effect out of a naked power, or authority, it was good without deed; but where a thing took effect out of an interest, there it must be by deed, if incorporeal; and by livery, if corporeal. In pursuance of this rule, it hath been held, that if executors be ordered in a devise to sell land, they may do it by deed, or by parol, because the vendee takes under the devise, and not under the conveyance of the executors ; according to the principle, that whoever claims under the execution of a power, must make *title under the power itself. Whether this principle would, or would not, have applied to the present case, we need not now examine, for admitting that it did, we are satisfied that the statute of frauds has done it away.
The only remaining inquiry upon this head is, whether the return of the under sheriff was not a sufficient deed, or note in writing, within the act ? But there are several objections to this return. In the first place, it is not, in pursuance of the statute, a return in the name of the sheriff. It is expressly a return in his own name. When a man acts in contemplation of law, by the authority, and in the name of, another, if he does an act in his own name, although alleged to be done by him as attorney, it is void. In the case of Frontin v. Small, the attorney executed a lease in her own name, although stated to bo made for and in the name of the principal, and the lease was held to be void, because made in her own name. This case was recognized as good law, so late as the case of Wilkes v. Back. This return is not, therefore, an act of the sheriff, of which we can take notice. But admitting it to have been made in the name of the sheriff it could not be a sufficient deed, or note in writing, of the sale, because it has not the requisite certainty. It does not appear what estate was sold, whether an estate for years, for life, or in fee, nor is there any certainty a's to the thing sold. It is stated to be all that farm, or tract of land in Pompey, in the tenure and occupation of the defendant. But there is no kind of estimation of the quantity of land sold, nor in what part of the town it lays, or how marked and bounded. We do
A general sale by the sheriff of all that tract of land in the town of Pompey, in the tenure and occupation of the defendant, does not appear to us to comport with the rule. *It might as well have been all that tract of land in the county in his possession. We are of opinion a more definite description of the situation and amount of the land, aud of the quantity of the defendant’s interest therein, ought to have been stated, and that the evidence of this sale^ even admitting it to have been duly made by the sheriff, has not the requisite certainty.
In England, when the sheriff extends lands by elegit (Doug. 478;) he returns an inquisition, specifying the farm the number of acres, the metes and bounds, the value, &c Yet the statute of W. II. 13 E. I. c. 18, which gave the elegit, only required in general, that the sheriff deliver one half of the defendant’s land, until the debt be levied upon a reasonable price, or extent. If, however, all the objections hitherto raised had been surmounted, we are of opinion that the evidence offered on the part of the defendant at the trial, ought to have been received, to show the sale was fraudulent and void. The evidence went to show that the first sale was valid and binding, and had been carried into effect by a deed from the sheriff. That the second sale was made, at the solicitation of the plaintiff, without any notice by advertisement, and on his indemnity to the sheriff, who was then on his death-bed, and incompetent to do business
Motion granted.
Aliter, if it had been returnable out of term, it would be only voidable. Cramer v. Van Alstyne, 9 Johns. Rep. 386.
S. P. Jackson v. Catlin, 2 Johns, Rep. 248, affirmed, on a writ of error, (8 Johns. Rep. 520,) ruling also that, although a deed be executed by a sheriff, and delivered to the attorney for the plaintiff on a fi. fa. tobe handed over to the grantee on payment of the purchase-money, the ¿state does not pass to him till the money he paid.
Under the Code, where an execution is issued against real property, the real property adjudged to be sold must be sold in the county where it lies by the sheriff of the county, or by a referee appointed by the court for that purpose; and thereupon the sheriff or referee must execute a conveyance to the purchaser, which conveyance shall he effectual to pass the rights and interests of the parties adjudged to be sold. Code of Procedure, § 287, [see. 242.]