Reynolds v. Darling

By the Court,

Bal com, J.

A sheriff who sells real estate by virtue of an execution, cannot execute a conveyance to the purchaser until after the expiration of fifteen months from the time of the sale. But it is provided by statute that his conveyance, when made, is valid and effectual “to convey all the right, title and interest which was sold” by him. (3 jE. 8. 5th ed. 655, §§ 78, 79.) And how long soever it is executed after the time to redeem expires, it relates back* so as to convey all such right, title and interest. (Wright v. Douglass, 2 Comst. 373. Cook v. Travis, 20 N. Y. Rep. 400.) These are general rules; but we shall presently see whether they must not be qualified when the rights of third persons intervene.

In case the purchaser dies previous to the execution and delivery of the conveyance by the sheriff, the same 'must be executed and delivered to the executors or administrators of the purchaser; and the executors or administrators hold the real estate, so conveyed, “in trust, for the use of the heirs” of the deceased purchaser, “subject to the dower of his widow, if there be anybut it may be sold for the payment of his debts, by the order of any surrogate or court of equity, in the same manner as lands, whereof he died seised. (3 R. S. 5th ed. 655, §§ 80, 81.) And it is provided by the code, that “an executor of administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted.” (Code, § 113.) It follows, that the sheriff properly executed the deed of the farm in question, to the plaintiff, as administrator of the deceased purchaser, and that the action may be maintained byhim, if by any person claiming under the sale made by the sheriff; also, that the deed conveyed to the plaintiff all the right, title and interest in the farm, which the sheriff sold, unless the defendant has acquired rights that prevent the same having - that effect.

At the time the sheriff sold the farm, the statute only required that his certificate of the sale be filed in the office of the clerk of the county; and it was so filed within the prescribed time.- (3 R. S. 5th ed. 651, §57.) The statute making it the duty of the clerk to record the certificate, was not passed until the year 1857. (Laws of 1857, eh. 60, § 1.)

I am inclined to the opinion that if the defendant had purchased the farm before the expiration of ten years from the recovery of the judgment, under which the sheriff sold it, (I mean at any time before the judgment ceased to be a lien on the farm,) he could not be regarded as a purchaser, in good faith, under the statute, (1 R. S. 756, § 1,) though his deed was first duly recorded, for he had notice of the judgment, which, as long as it was a lien on the farm, was notice sufficient to put him on inquiry as to all that had been done under the judgment. (Williamson v. Brown, 15 N. Y. Rep. 354. Tuttle v. Jackson, 6 Wend. 213. Cook v. Travis, 20 N. Y. Rep. 402, 403. 22 id. 387.) If this were not so, the defendant’s deed would have been good, if he had taken it, and had had it duly recorded within the fifteen months after the sale by the sheriff, as against any conveyance the sheriff could have given immediately after the expiration of that period; for, as has been seen, the statute authorizing the recording of the sheriff’s certificate of sale, was not passed until 1857.

I confess, that without the aid of the act of 1857, injustice might be done, under the above mentioned rule, to purchasers of real estate at sheriffs’ sales, when made within fifteen months next before the expiration of the lien of the judgments under which they are made.

The defendant did not become a purchaser of the farm until nearly twelve years after the docketing of the judgment, under which the sheriff sold it. He paid a good and valuable consideration therefor, and had no knowledge of the sale made by the sheriff, and was a purchaser in good faith. His deed was duly recorded before the sheriff executed the conveyance to the plaintiff; and under the statute respecting the recording of conveyances, the conveyance made by the sheriff to the plaintiff was void as against the defendant. (1 R. S. 756, § 1.)

The plaintiff’s deed was void, as against the defendant, whether section 282 of the code, respecting the lien of judgments, is an entire substitute for the revised statutes on that subject or not, (see 2 R. S. 359, §§ 3, 4;) for it was held in Little v. Survey, (9 Wend. 157,) that a purchaser of real estate from the judgment debtor, more than ten years after the docketing of a judgment against him, is to be deemed a purchaser in good faith, unless he purchases with an actual fraudulent intent. And that mere notice of the judgment, either actual or constructive, will not render the purchase mala fide.

The foregoing views, touching the validity and priority of the conveyances in question, are sustained by the reasoning of Judge Comstock, in Cook v. Travis, (supra.) He there said: “I think the title of the Youngs, under the Munn judgment, must yield, for the reason that the sheriff’s deed to Barto was not recorded. As Barto did not appear, upon the records, to have any title or interest, his conveyance to the Youngs was not constructive notice. The Life Insurance and Trust Company, on taking their mortgage, were not bound to search for conveyances from a person to whom there was no conveyance upon the record. The recording act, both in its letter and policy, seems to apply to the case. The sheriff sold the title of a judgment debtor under the oldest judgment. The deed given on that sale, over thirty years afterwards, may be allowed to have effect, by relation back to the time when it ought to have been given. But it was not recorded. The sheriff sold the title of the same debtor, on a younger judgment, and the deed was given, and put on the record. The sale and conveyance under the first judgment are therefore void, as against bona fide purchasers (including mortgagees) of the title derived from the same common source; all the conveyances in that chain of title being duly recorded. (1 R. S. 756, § 1.)

[Broome General Term, November 15, 1864.

The decision in Wright v. Douglass, (supra,) is not in conflict with Cook v. Travis, or any of the foregoing views.

I have not deemed it necessary to comment upon the cases of Jackson v. Terry, (13 John. 471,) Jackson v. Post, (9 Cowen, 120,) or Jackson v. Chamberlain, (8 Wend. 620 ;) they have but little, if any, bearing upon this case; for the statute directing the sheriff to file in the office of the county clerk certificates of sales of real estate, made by him in virtue of executions, was not passed till the year 1820. (Laws of 1820, p. 167.)

My conclusion is, that the plaintiff’s deed of the farm in question is void, as against those under which the defendant claims; and that, therefore, the plaintiff’s motion for a new " trial should be denied, with costs.

Decision accordingly.

Campbell, Parker, Mason and Balcom, Justices.]