Zabriskie v. Meade
2 Nev. 285
Nev.
1866
Check Treatment

*286Opinion by

Lewis, O. J., Beatty, J., concurring.

The judgment in this case is clearly contrary to the evidence, and must therefore be reversed; the title proven by the plaintiff upon the trial being based upon a judgment which it appears Avas rendered long after the premises had been conveyed by the judgment creditor to one Rawlings, from whom the defendants claim title.

If the recitals in the execution, certificate of sale and Sheriff’s deed, Avhich were introduced in evidence by the plaintiff to establish his title, be received as correct, the Sheriff sold property not belonging to the judgment creditor, but Avhich was claimed by the grantor of the defendants by virtue of a deed which had been executed and recorded nearly a year before the rendition of the judgment upon which the sale Avas made to the plaintiff. It appears from the record that in the month of June, a.d. 1863, one C. C. York entered into an agreement Avith John Rawlings, by which he agreed to sell to him the premises in dispute for the sum of three hundred dollars, payable in monthly installments of fifty dollars; that on the tAventy-third day of November, a.d. 1863, York and Avife, in compliance Avith the agreement, executed a deed of the premises to John RaAvlings; and on the twenty-second day of January, a.d. 1864, the same Avas recorded in the office of the County Recorder of Lyon County; and on the tAventieth day of April, a.d. 1865, RaAYlings conveyed to the defendants in this action. This is the title made out and relied on by the defendants. The plaintiff, to support his claim, introduced in evidence a judgment of the Probate Court of Lyon County, rendered on the sixteenth day of November, a.d. 1863, in his favor and against C. C. York, for the sum of one hundred and forty dollars and costs of suit. Upon this judgment an execution was issued on the eighteenth day of November — two days after the rendition of the judgment — by virtue of Avhich some little personal property Avas seized and sold, but not sufficient to satisfy the judgment. On the twentieth day of January, a.d. 1864, an alias execution Avas issued and returned unsatisfied ; and on the twenty-third day of November, a.d. 1864, an execution is issued in an action entitled C. B. Zabriskie v. C. C. York, by virtue of Avhich the premises in dispute Avere sold to the *287plaintiff in this action. The probability is that this execution was issued upon the judgment rendered on the sixteenth of November above referred to, but it recites that it is issued upon a judgment rendered on the sixteenth day of November, a.d. 1864, and it commanded the Sheriff to satisfy the judgment out of the personal property of the defendant C. C. York, and if sufficient personal property could not be found, then out of the real property belonging to the defendant on the day upon which said judgment was docketed, or at any time thereafter. The Sheriff certifies that on the twenty-fifth day of November, a.d. 1864, by virtue of this execution he levied upon and sold the premises in dispute to the plaintiff O. B. Zabriskie, for the sum of two hundred and twenty-six dollars. The notice of sale also recites that the property was levied on by virtue of an execution issued upon a judgment rendered in the Probate Court for the County of Lyon on the sixteenth day of November, A.D. 1864. The certificate of sale also refers to a judgment rendered in November, a.d. 1864,'as that under which the sale was made, and the Sheriff’s deed, which was executed on the thirteenth day of July, a.d. 1865, contains the following recitals:

“ Whereas, by virtue of a writ of execution issued out of, and under the seal of the Probate Court of the Third Judicial .District of the State of Nevada, in and for the County of Lyon, tested the 23d day of November, A.D. 1864, upon a judgment recovered in said Court on the 16th day of November, a.d. 1864, in favor of C. B. Zabriskie and against O. O. York, to the said Sheriff directed and delivered, commanding him that of the personal property of the said judgment debtor in his bailiwick he should cause to be made certain moneys in the said writ specified ; and if sufficient personal property of the said judgment debtor could not be found, that then he should cause the amount of said judgment to be made out of the lands, tenements, and real property belonging to Mm on the 23d day of November, a.d. 1864, or at any time afterwardsand the deed then recites, that sufficient personal property not being found, the Sheriff levied upon and sold the premises in dispute in this action to the plaintiff, C. B. Zabriskie. There seems to have been no attempt to show that the date of the rendition of the judgment, as stated in the execution, notice of. sale, certificate and date was a mistake, or to show that any other judgment than that of November *28816fch, a.d. 1863, was ever rendered; and yet the execution, notice of sale, and deed, all refer to a judgment rendered in November, a.d. 1864, a year after the sale of the premises by York to Rawlings. As the execution only authorized a levy and sale of such real property as belonged to York in November, a.d. 1864, and as the Sheriff did not levy upon or convey anything else, it follows that the plaintiff got nothing by the sale, because the property sold was not the property of the defendant, nor subject to the lien of the judgment, and the sale was, therefore, wholly unauthorized, it being the sale of the property of Rawlings to satisfy a judgment against York. Whether the judgment referred to in the execution and deed be in fact the one rendered in November, a.d. 1863, or whether there was another judgment rendered a year later, we cannot determine from the record. In the disposition of this case, however, we must take the recitation in the deed as conclusive that there was a judgment rendered in November, a.d. 1864, and that the sale of the property in dispute was made to satisfy it. Even if there had been an attempt to correct or contradict the deed by showing that the levy and sale were made under a judgment rendered in November, a.d. 1863, it would have been inadmissible in this action. The recitals in the Sheriff’s deeds are conclusive between the party making them and those claiming under the deed.

Donahue v. McNulty et als., 24 Cal. 411. In delivering the opinion in that case, Mr. Justice Currey says: “ The officer who makes a sale and executes a conveyance of land under and by virtue of a judgment and execution, must necessarily make some reference in his deed to the authority under which he acted, and to the character of such authority. This is essential for the purpose of showing a transmission of the debtor’s title in the property to the purchaser and grantor thereof. This is done by recital of certain facts constitutive of the officer’s authority to sell and convey, and when this is done, those who claim under the deed are estopped from denying the truth of the facts recited.” So in the case of Jackson v. Sternberg, 20 John. 50, it was held that parole evidence was inadmissible to contradict the recital, or show that the land was sold under a different judgment and execution than those recited in the deed.

The plaintiff could not, therefore, in this action have been per*289mitted to contradict the Sheriff’s deed, upon which he relied, by showing that the sale took place under a judgment rendered at a time different from that mentioned in the deed, even if he had been desirous of doing so. But we do not see that the correction of the deed would help the plaintiff in the least, for the execution only authorized the Sheriff to sell such real property as York, the judgment debtor, was the owner of on the 16th day of November, A.D. 1864 ; and the record in this case clearly shows that, long before that time, York had conveyed away the premises levied on by the Sheriff, and that he had no interest in them on the 10th of November, a.d. 1864; hence the sale by the Sheriff was an absolute nullity, as much so as if he had levied on the property of an entire stranger to all parties to the proceedings in which that judgment was rendered. For it is now too well settled to admit of question, that a purchaser at a sale of real property under execution gets only such interest as the debtor possessed at the time of the lien of the judgment. If the judgment debtor has nothing, the purchaser gets nothing. (Boggs v. Hargrave, 16 Cal. 559.)

In this case York, the judgment debtor, had no interest in the property on the 16th November, A.D. 1864, the time stated in the execution when judgment was rendered, and, therefore, the purchaser, Zabriskie, gets nothing by the sale.

Judgment reversed.