Jackson ex dem. Russell v. Croy , 12 Johns. 427 ( 1815 )

Yates, J.,

delivered the opinion of the court. The judgment given in evidence against Abel Russell, was docketed in 1807. The execution had regularly issued on it, so that the sale made by the sheriff, and the deed given by him, in June, 1811, to David Russell, vested the title to the premises in him. That title cannot be affected by the deed of Abel Russell, to Griffis and Philips, executed in October, 1810, being subsequent to the docketing of the judgment upon which the sheriff’s deed to David Russell is founded, unless that deed has been obtained from the sheriff under circumstances of fraud, which would render it void.

The paroi proof received on the trial, was not to explain any ambiguity in the sheriff’s deed, but is directly contradictory to it, and, therefore, inadmissible. There was no uncertainty as to what was conveyed by it. The premises in question were evidently included and described in the deed, and resorting to this sort of extrinsic testimony, to show that the premises ought not to have been included, is contrary to the established rules of evidence, in relation to instruments of this description. But admitting that the evidence could be received on the ground of fraud or mistake; it neither shows fraud nor imposition by Russell, one of the lessors, nor a mistake in the sheriff; for it does not appear that the premises were excepted at the sale. There is nothing stated explicitly on the subject. The sheriff declares he has n» di’stinc t recollection about it. He remembers that David Russell .stated, that his father, Abel Russell, had sold certain lots, which he wished to have excepted from the sale, and said it was not intended to sell any part of the land which his father had sold; but whether a memorandum, enumerating the excepted lots, was handed to him, or not, he does not remember. He recollects that certain exceptions were made by him on the sale, according to the directions he had received from David Russell; but whether the premises in question were excepted, he does not know. The manner of executing the deed, as stated by him, may -well have taken place, and still the whole be fair and bona fide. The sheriff might have read the whole deed, if he pleased; for he says he examined a part of the deed ; and because he did not examine the residue, can it be .tolerated, that the person ' V , . . - . . who drew and presented it must be subjected to the imputation of fraud upon,Mm ? This cannot be. We are bound to consithe-transaction to have, been conducted in good faith,,unless the..Contrary appears', ft is evident that no part of the testimony will warrant the -inferéti'ee that fraud was practised, by1 Russell. . - ,': , 1 . . .

The repeated acts of the defendant, recognising the plaintiff’s title, by applications to purchase from him, both before and. after lie, entej-ed into, possession of the premises.,, afforded the strongest reason to presume- that the defendant was iti posses-, sion under David Russell. We are accordingly Of ppinion that, the plaintiff ought to have judgment»

Judgment fat the plaintiff,