Yates v. St. John

12 Wend. 74 | N.Y. Sup. Ct. | 1834

By the Court,

Savage, Ch. J.

The only question is whether it was necessary for the plaintiff to produce the judgments to support the executions under which he purchased ? The cases referred to show, that in trespass against an officer for taking goods in execution, brought by the defendant in such execution, the officer need not prove a judgment; but in trespass by a stranger he must. 1 Ld. Raym. 733. 6 Johns. R. 196. 5 Burr. 2633. In Doe v. Smith, 2 Starkie’s N. P. Cas. 175, it was held in ejectment that a lessor who purchases at sheriff’s sale upon judgment and execution in his own favor, must show the judgment as well as the execution. And in Glasin v. Eve, 8 Com. Law R. 298, it was decided that a plaintiff who made title to goods by means of an execution jn j^s own favorj jn a su;t against assignees, must show the judgment as well as the execution. The judgment is a part of the title, and should be shown. It is true that as against , „ . . , ... j the defendant in the execution, it is not necessary to produce the judgment, because he is the party to the record. It is contended that all who claim under him stand in the same situation. This last proposition seems to have been denied in the case last cited. The execution may have been prima facie sufficient, hut when the defendant St. John showed himself a bona fide purchaser of property in possession, as I infer, of the former owner, the plaintiff was called on to show a complete title. The defendants in this suit, I apprehend, do not stand precisely in the situation of the defendant in the execution, in relation to the plaintiff. These parties both claim the property as once owned by C. E. Yates, and claim adversely to each other. The defendants in this suit are neither parties nor privies to the execution under which the plaintiff purchased.

Motion to set aside nonsuit denied.