Woods v. Monell

Where a tract of land is divided into separate and distinct lots and parcels, it is the duty of the sheriff, who has an execution against the land, to sell it in parcels, and not the whole tract together. But, to set a sheriff’s sale aside, there must be satisfactory evidence of fraud, or abuse of power, in the sheriff.

THE bill stated, that on the 30th of July, 1812, Sackett, one of the defendants, was seised of the premises, being indebted to the plaintiff and others; and, in order to secure them, conveyed the premises to the plaintiff, his heirs and assigns; and the deed was registered the 6th of August, 1812. The premises are described as situate in the town ai Newburgh,, being lot No. 34., and the easterly end of lot No. 38., containing three acres and a half, bounded south by the turnpike road, east by Liberty-street, north by land of Smith, &c. and west by land of Taylor, &c. out of the said tract of land, 10 lots fronting on the turnpike road, before sold. At the time of the execution of the deed, the plaintiff gave to the defendants a declaration of trust, covenanting to sell such part of the said lands as were unencumbered, and apply the proceeds towards discharging incumbrances on the residue, and after the encumbrances were removed, to sell the residue of the lots or parts of land, and apply the proceeds to pay the residue of tbe debts of Sackett, and return him the overplus, if any. The plaintiff took possession under his deed, and leased tlie premises to Jonathan Ilasbrouck. At the time of the conveyance, a part of the premises were encumbered by a mortgage to W Lawrence, for 3,500 dollars ; and the premises, by a judgment in favour of Austin and Andrews, for 1,114 dollars, and which judgment, after the deed, was sold to the defendant, Monell. A judgment was docketed, the 18th of July, 1812, in favour of E. Griswold, against Sackett, for 84 dollars and 92 cents ; and another judgment was docketed against Sackett, in favour of Duryee and Heyer, for 394 dollars and 62 cents, Monell refused to sell his judgment to the plaintiff. Executions were issued on all the judgments, and the sheriff sold all the premises together, at once, under the judgments, on the 23d of February, 1813, subject to all encumbrances. The bill further stated, that the premises consisted of town lots, and might have conveniently been sold separately ; that Sleght, who was the attorney of Duryee and Heyer, and the defendants, Monell and Weller, attended the sale. The plaintiff was, also, present, and gave notice of his deed of trust, and requested the sheriff to sell in parcels, and not on any judgment posterior to the date of his deed. That a bill was then pending by Lawrence to foreclose his mortgage. The premises were sold and conveyed to Sleght, the highest bidder, for 1,200 dollars, in behalf of Monell and Weller, to ' whom he afterwards conveyed. That the premises were worth, over and above the mortgage, more than 10,000 doljars_ That the defendants, Monell and Weller, had commenced actions of ejectment to recover possession of the premises. The plaintiff offered to pay off the judgment in favour of Griswold; and prayed an injunction to stay the action of ejectment; and that the sale, by the sheriff, might be set aside as fraudulent and void. The answer of the defendants admitted the deed of trust to the plaintiff, the judgments, executions, sherifí’s sale, Szc.; that the plaintiff requested the sheriff to sell in parcels; that he sold the whole together under the three executions, and declared that the sale was subject to all encumbrances ; that the premises had been laid out into town lots on a map ; but no one informed the sheriff of the divisions or numbers of the lots ; nor did it appear that they had been divided, except on paper. Monell denied that the plaintiff had offered to purchase, or that he had refused to assign to him the judgment of Austin & Andrews. That the premises sold for nearly their value, and would not have brought much more had the sale been in distinct parcels or lots. Sackett, son of the defendant, Sackett, who was sworn as a witness for the plaintiff, stated, that the premises, at the time of the sheriff’s sale, were worth about 12,000 dollars, and were divided and laid out into lots, to the map of which he referred ; and that, at the time of the sale, they were divided into five separate lots by fences. That he was present at the sale, and the sheriff declared that he sold by virtue of the three executions in favour of Austin An» drews, Griswold, and Duryee &/• Meyer; that the plaintiff requested that the premises might be sold in parcels, and Monell said he did not know him in the business. The sheriff declared that he should sell ail the right of Sackett, in the premises; that the plaintiff informed the sheriff and those present, of his deed, and requested the sheriff to sell on the first judgment only; that it was generally known at New burgh that the premises were divided into town lots. D. Wright, another witness for the plaintiff, who was acquainted with the premises, and was present at the sale, said that they had been laid out into building lots, but he did not recollect seeing any cross fences ; that the plaintiff requested the sheriff to sell in parcels, and on the first judgment only; that Monell, the defendant, said he did not know the plaintiff in the business, and directed the sheriff to proceed and sell all the premises together, under all the judgments; that Sleght gave similar directions to the sheriff. The sale was near by, and irf view of the premises. The map, which was produced, was dated November, 1812.