| New York Court of Chancery | Sep 27, 1815
The suit is brought to set aside the sheriff’s sale, on the ground of fraud. The plaintiff has not made out a case of actual fraud; and if the sale is invalid, it must be because the premises described in the case were sold contrary to law, by being sold entire, and not in parcels, as the plaintiff requested.
I have no doubt of the value and solidity of the rule, that where a tract of land is in parcels, distinctly marked for separate and distinct enjoyment, it is, in general, the duty of the officer to sell by parcels, and not the whole tract, in one entire sale. To sell the parcels separately is best for the interest of all the parties concerned. The property will produce more in that way, because it will accommodate a greater number of bidders, and tends to prevent odious speculations upon the distresses of the debtor. Nor does the officer act within the spirit of his authority, if he sells more than is requisite to satisfy the execution. To
But I do not perceive that the circumstances of this case are sufficient to warrant the application of the rule.
The plaintiff was present at the sale, and became a bidder. He requested the sheriff to sell the premises by lots, and not in one entire parcel; but he produced no map or other description of the ground as laid out in lots. In the deed of trust under which the plaintiff claimed title, and which had been executed to him by the defendant in the execution, about six months before, the ground was not designated by lots, but was described as a “ certain lot, piece, or parcel of land, known and distinguished on a map, &c. as lot No. 34., and the easterly end of lot No. 38., containing three and a half acres, and bounded,” &c. And when the plaintiff took possession of this “ said tract of land,” under his deed, he leased the same as one entire parcel to I. Hasbrouck; and so it appears to have been enjoyed at the time of the sale.
The sale is represented as having been made on the land. To bring the sheriff in default, or to charge him with an abuse of trust, the plaintiff, who was then in possession, and claimed the land, ought, at least, to have furnished the sheriff with clear and distinct proof of the division of the three acres into town lots, and of the size and description of these lots, and that the same was the act of the owner. So small a tract, and under the occupation of one tenant, will not, without other circumstances, raise thepresumption ofan abuse of power in the sale. One of the witnesses says, that the premises, at the sale, were divided into five lots, by fences; but
There is another objection which has been suggested. The sheriff had in his possession, at the time of sale, executions on three judgments against the same defendant, two of which were older, and the other younger, than the deed of trust to the plaintiff; and he did not discriminate distinctly, at the outcry, that he sold under the oldest execution exclusively ; but it is left to be inferred, that he sold, generally, under those three executions, all the right and title of the defendant. There was no concealment in the case of any fact. The executions were all known and mentioned, and I do not perceive any abuse of power in this circumstance that can affect the sale. It is admitted that the sheriff sold under the first execution. The deed to the purchaser mentions the two first executions, and them only ; and as the first execution would pass all the title of the defendant, every bidder knew, or was bound to know, that his title would have been perfect under the sale, subject only to encumbrances prior to the first execution, and of such encumbrances every one had the means of knowledge as well as the sheriff.
I see no sufficient ground, therefore, upon which this bill can be sustained; and it must, accordingly, be dismissed as to all the defendants, with costs.
Decree accordingly.