Jackson ex dem. Carman v. Rosevelt

Yates, J.,

delivered the opinion of the court.

The first question in this cause is, as to the validity of the general judgment entered in the suit instituted by the executors of Nathaniel Marston, against Elizabeth'Ellis and Jacobus Van Kleech, and Sarah, his wife, as heirs and devisees of Laurence Van Kleech, under which the defendant claims his title, derived from the purchaser at a sheriff’s sale, in virtue of an execution issued on that judgment.

The rule recognised in the books is, that, when the heir pleads a false plea, the plaintiff is entitled to a general judgment, but that non est factum of the ancestor is not deemed such a plea, if even it be found, on the trial, that the ancestor had executed the deed. In 2 Saund. 7. n. 4., it is expressly laid down, that the plea of non est factum of the ancestor is an exception to the above rule; that, if it be found false, if does not alter the judgment, but the lands descended only are liable to execution. The case of Clothworthy v. Clothworthy (Cro. Car. 437.) supports the same principle.

It is manifest, then, that the judgment on which the premises were sold to John C. IVynkoop, by the sheriff of Ulster county, is erroneous, and might have been corrected, on proper application for the purpose. It certainly cannot be deemed void altogether, particularly as against a purchaser at a sheriff’s sale, because it is the judgment of a court of general jurisdiction, and the time of entering it was known to the defendant. It might, at their instance, have been modified, or set aside, previous to the sale; but that not having been done, it remained in force, and was in operation at the time of sale; and the title to lands under it, in the hands of an innocent and bona fide purchaser, *102 ought tb be protected' by it, unless such sale is rendered questionable on other and different grounds.

The objections, that it .took place long after, the return day of the execution, and that it did not appear that a levy had: been made before the return day, and that the execution had not been-' .issued until-more than a year and a day after judgment, cannot affect the sale. In Jackson, ex dem. M'Crea, v. Bartlett, (8 Johns. Rep. 361.,) this court decided, that, in an action of ejectment against a purchaser under a sheriff’s sale, the regularity of the execution could not be questioned, and that, if an •execution issues after a year and a day, without a revival of the judgment by sci. fa., it is only voidable at the instance of the party against whom it issued. In this case, I can see no reason why the same doctrine should not apply to the irregularity of the judgment, as well as the execution, A contrary principle would be attended with manifest injustice to purchasers. The defendant in the suit knew,- or ought to have known, the consequences which would inevitably follow their allowing the judgment to1 remain. Having appeared and pleaded, in the.suit against them, as heirs and devisees, and a part of the debt having been collected from them by'the sheriff of Dutchess county, in virtue of aii execution on the same judgment, before the sale made by the sheriff of Ulster, it cannot be presumed that they were not fully, apprized of-the Operation of the judgment on all the real property owned by them. Theii’ negligence and acquiescence, therefore, in not causing it to be set aside in season, would be conclusive against them, provided the deed executed by the sheriff of Ulster, to John C. Wynlco 'op, on -the sale under the judgmeat and execution before stated, is sufficient, in law, to convey the, premises in question.

The deed contains the following, description : “ All the lands and tenements .of Elizabeth Ellis and Sarah Van Kleech, heirs- and devisees of Laurence- Van Kleech, situate, lying, and- being, in the patent commonly called and known by thé' name of the Hardenburgh patent.” -

This description is too general; it does not define the. lots, or parts of the lots, pf land owned, by the defendant named in the judgment; nor is the'allotment in which- they are situated mentioned, although,, by the case, it appears that .the patent had been, divided among the proprietors, and that such partition; was hotssrioiis, for it is .stated to have beenreeorded in the .office *103 of the secretary of state, and that it had been confirmed by an act of the legislature. To say, therefore, that a sheriff’s deed for all the lands and tenements of Elizabeth Ellis and Sarah Van Kleeck, in this patent, containing a tract of land evidently one of the most extensive in the state, and comprehending a district of country lying in several counties, is sufficient, would be giving an unprecedented latitude to the officer making a coercive sale, and by mere operation of law, and might be attended with consequences destructive to the rights of the' debtor. No estimate of the value of the lands offered for sale could be made from this general and indefinite description; and, without some definite information, as to its situation, there must generally be a sacrifice of property, either by the debtor or purchaser. In most instances, if not invariably, the former would experience the loss. The officer ought to prevent such a consequence. The least that can be required of him, in-making the sale, is so to locate the lands, as to afford means to the by-standers and bidders, of informing themselves as to the value. That was not done in the present case. The deed given by the sheriff of Ulster, must be deemed wholly inoperative, for the want of a sufficient description of the premises alleged to have been sold by it. If so, John C. Wynkoop, to whom the deed was given, had no right to institute proceedings in partition under it. The commissioners, consequently, appointed by the court, under those unauthorized proceedings, could not give a title to the purchasers, which is the source of the defendant’s claim.

The 4th section of the statute for partition of lands, passed 2;6th of March, 1785, declaring that the deed of the commissioners, or any two of them, to the purchaser of lands set apart, and sold to defray the expenses of partition, shall pass to him as good a title for the separate enjoyment of the lands so purchased as if all the patentees or proprietors of the said land had made and executed the same, in due form of law, cannot avail in this case. It is true, the premises in question are held under a purchase, at a public sale, intended, unquestionably, to have been made by the commissioners, according to, and under the act above mentioned; but, as before shown, no authority existed by which John C. Wynkoop could institute those proceedings, and, of course, the confirmatory clause in the act does not apply to the deed given by them. There is nothing; *104 therefore, to preclude the lessors of the plaintiff, as the represen(;a(.¡ves of. Baltus Van Kheck, from setting up their claim to the premises in question.

Laurence Van Kheck held his lands in the Hardenburgh patent, by deed from Gerardus Lewis, one of the children of Leonard Lewis, being one eleventh of one eighth of all the lands in the patent; and it appears, by the first partition, that great lots Nos. 2. 17. 20. 26, and 28, fell to the share of the legal representatives of Leonard Lewis. What lots or parts of lots, in the subsequent subdivision between those representatives, were drawn to the share of Laurence Van Kleeck, is not stated in the case; nor was it necessary for the purposes of this decision ; that, however, must appear from the map of this subdivision, sthted to have been filed in the office of the secretary of state. Pie devised his estate in the patent to his four children, so that each child held an equal interest in the lands which had been allotted to him, and of which he died seised.

Joapsie, or Jacobsie, the wife of Laurence Van Kheck, also■ held one eleventh of one eighth of all the lands in the. patent, in virtue of the will of her father, Leonard Lewis; and in the subdivision before mentioned, lot No. 20, in the subdivision of great lot No. 2, fell to her share. She died intestate, seised of that lot, leaving Baltus Van Kleeck her heir at law. He conveyed to each of the remaining four children, one undivided, fifth part of their mother’s right in the- patent, retaining one fifth, to which his children, who are the lessors of the plaintiff, are entitled. The premises in question are comprehended within the above lot No. 20. Judgment must, consequently, be entered for the plaintiff, for one undivided fifth part of those premises.

Judgment for the plaintiff.