Lynn v. New England Mortgage Security Co. ( 1896 )

Atkinson, Justice.

The facts are stated in the official report.

1. The question in this case turns, not upon the validity of the sheriff’s sale of lot of land 140 under an execution which should properly have been issued only against lot 190, but upon whether the plaintiff under the facts of the present case can make that question. It will be seen that the attachment declaration described the property as being lot number 190. There was no such service, it is true, upon the defendant in the attachment proceeding as would have authorized a general judgment against him, but there was a special judgment against lot number 190. The plaintiff in execution, however, caused an execution to issue which did not follow the judgment, but was general against the defendant, and special against the property levied upon under the attachment. • "Under the execution thus issued, he caused the lot of land in controversy to be levied upon as the property of the defendant in execution. It was regularly advertised and brought to sale; the purchaser attended that sale and bought the land; and we think that the plaintiff in attachment, having itself been the author of these proceedings, is estopped to deny the validity of the sale. Whatever may have been the rights of other people to make the question that the sale was void, and though the purchaser at the sheriff’s sale must, as a general rule, look to the judgment as well as to the execution in order to ascertain the authority of the sheriff to sell, yet this rule applies only in favor of those persons who have not by their conduct contributed to bring about the illegal sale. As against this plaintiff in execution, whose process was moving to subject the property, and in response to whose invitation this purchaser appeared, the purchaser had the right to believe that the execution was what it purported to be — a general execution, and properly levied upon the property in controversy as the property of the defendant. We think, therefore, that the plaintiff, after having brought about such a condition of affairs, was estopped afterwards to sue in ejectment upon its deed, and was not authorized to recover upon proof of its own mistake in the premises. If the sale were illegal or void for. any reason which it could set up, it would be competent for it, in the proper proceeding, to move to set it aside; but no principle is better settled than that where one by his conduct induces another to act to his prejudice, the wrong-doer is estopped to set up his own unlawful conduct as against the interests of the person injured.

We are persuaded, therefore, that the judgment directing a verdict in favor of the plaintiff was error, and it is accordingly ■ ' Reversed.