Summary
[ * 173 ]
THE bill, in this case, was to set aside a conveyance made to the defendants Sudam and Elmendorf, under an ^execution directed to the sheriff of Ulster county. B. Gar-denier, being indebted to the executors of N. Evertson, deceased, (plaintiffs,) in the sum of 2,000 dollars, on the 5th of October, 1807, executed a mortgage to them of certain lands in Hurley, in the county of Ulster. The executors, after-wards, filed a bill to foreclose the mortgage, which was taken pro confesso. They stated that they were ignorant that the mortgaged premises were encumbered by any judgment until the master was about to sell. That a judgment at the suit of Newkirk and others v. Newkirk, docketed the 3d of January, 1806, for 190 dollars and 56 cents, bound the premises. That an act of the legislature was passed the 11th of April, 1808, for the relief of James Kain and Stephen Rea, stating that they were bail for David Rea, late sheriff of Ulster, and were his executors; that the said sheriff had made sales, but had given no deeds ; had executions in his hands, the execution of which was commenced, but not completed, at the time of his death, and that many other duties and things pertaining to his office, which were commenced, remained unfinished; and thereby authorizing them, K and R., to execute deeds for lands sold, and to do and perform every duty, matter, and thing, in relation to the said office, as fully as D. R. might do, if living, provided they gave security, &c.
The bill further stated, that they gave security; that afi.fa. issued on the judgment which was delivered to the said sheriff, in his lifetime, but he did not commence the execution of it by levying on the said lands, so that the executors °f the sheriff had no authority, as the bill alleged, to sell, &c. That the premises were advertised for sale by the master, under the decree, on the 12th of May, 1814, but the sale was postponed to the 23d of May, when it took place. That, until the day before the sale, neither the master, nor the executors of Evertson, knew of the judgment, execution, or levy; the master was then informed, by the sheriff, of the judgment, and that he had advertised *part of the premises for sale under the execution, which he had postponed to the 23d of May, and that there was due on the execution the sum of 315 dollars ; that he proceeded not as sheriff, but as agent of K. and li., who acted under the act. The master agreed with the sheriff to sell the part of the premises (advertised under the execution) under the decree, free and discharged from the judgment; and out of the proceeds, to retain sufficient to' pay the judgment: that this agreement was made known to all the persons present, and the master sold the part of the premises which had been advertised by the sheriff, for 2,006 dollars and 35 cents, out of which he retained 315 dollars to satisfy the judgment. That the sheriff considered the land so sold as discharged of the judgment, and promised to procure a deed from the executors of Rea. That the postponement of the sale by the sheriff, to the 23d of May, was made at the instance of Sudam;. that the master adjourned the sale of the residue of the premises to the first of June, and left in the hands of a third person the 315 dollars, until that time; that after the sale above mentioned, on the same day, C. E. Elmendorf, defendant, informed the master, that the sheriff, or agent of the executors of Rea, had sold the part of the premises to him for 400 dollars; that the judgment was for 190 dollars and 56 cents only. That the master attended on the 1st of June, to sell the residue of the premises, and to satisfy the judgment, when he was informed, that the difference between the 190 dollars 56 cents, and 315 dollars, consisted of interest, which he was not authorized to pay, and there were no directions endorsed on the execution to levy interest, but only 190 dollars and 56 cents, and sheriff’s fees ; that the master offered to pay this sum, which was refused. That the master then proposed to refer the question to the executors of Evertson at Ñew-Tork, to which the sheriff assented. That the master, on the 1st of June, sold the residue of the premises for 474 dollars, which, with the proceeds of the former sale, was not sufficient to satisfy *the mortgage debt. That after the 1st of June, and after the above proposal was made and accepted, the sheriff, as agent of the executors of Rea, without the knowledge of the plaintiffs, or of the master, collusively sold the said part of the premises, for 600 dollars, to Sudam,, defendant, who made the purchase for himself, C. E. Elmendorf.¡ and J. Burr; and that the executors of Rea executed a conveyance accordingly. That those purchasers, at the time, well knew of the agreement between the master and sheriff; that such sale was fraudulent and irregular, not having been duly adjourned to the 1st of June, orregularly advertised, and the same land had been before sold to Elmendorf, on the 23d of May. That the executors of Rea, before they executed the deed to Sudam and the others, were informed, by letter, of all the above circumstances. That S. E. and B. have since sold the same land to others, who knew, at the time, of the circumstances, and had brought an action of ejectment, &c. The bill prayed that the sale to Sudam, E., and ■B., and the subsequent sales by them, might be set aside as fraudulent and void; that upon payment, by the master, of the 190 dollars and 56 cents, and the sheriff’s fees, the judgment and execution might be deemed satisfied, and the executors of Rea be directed to convey to the purchasers under the master’s sale, all their right under the judgment; and that Sudam and others may account for the rents and profits to the purchasers under the master, and that Sudam and others, and those holding under them, may be enjoined from selling, or committing waste, &c.
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[* 176]
The answer of the defendants did not admit that the executors of Evertson had no notice of the judgment of Neiokirk, but, on the contrary, alleged, that some of them had notice of it before the 22d of May, 1814. They averred, that the master promised to satisfy the sheriff the amount of the judgment out of the sale, and that the sheriff desisted from proceeding on the 23d of May, to see if the *master would fulfil his promise. The defendants Sudam and Burr averred, that such agreement was true; that the sheriff, at the time, offered the part of the premises for sale, and showed the execution, and that the purchasers under the master knew of the judgment and execution before the sale by him. They denied any agreement that the part so sold should be free of the lien, &c., unless the master, immediately after the sale, and before it was exposed for sale by the sheriff, paid the amount due on the judgment. Sudam, defendant, stated, that he attended, on the 23d of May, in behalf of the persons interested in the judgment, and then understood, from the master and the sheriff, that the master would pay the execution out of the moneys arising from the sale, immediately thereafter, or that the sheriff would proceed to a sale under the execution; and that this agreement was publicly proclaimed by the master. That the master, after the sale, did not pay the judgment, and the sheriff, on the same day, offered the lands for sale, and D. B. bid 316 dollars, and the sale was then adjourned to the next day. Elmendorf, defendant, stated, that at the sale, on the 24th of May, he bid 400 dollars, and the sale was then postponed, by his consent, and subject to his bid, to the 1st of June, to see if the executors of Evertson would satisfy the judgment. Sudani said, that he did not attend the two last-mentioned days; and he and Elmendorf stated, that the master had received the purchase money, before the sale by the sheriff.
[ * 177 ]
Sudani further stated, that on the 1st of June, he understood that the master had sold the residue of the land for 424 dollars, and believing that the execution had been satisfied, he did not attend at the adjourned sale of the sheriff; but afterwards, between 12 and 1 o’clock, being informed by the sheriff otherwise, and requested by him to attend, he attended the sale, and bought the first part of the premises for 655 dollars; that there was nothing fraudulent in the sale, but on the contrary, it was fair, and made bona *fide; that the purchase was for the joint benefit of himself and Elmendorf; that on the 5th of June they sold one third of the land to J. Burr for 350 dollars, to whom they gave a deed, and received a reconveyance from the executors of Rea, That the only agreement known to them was, that the master should satisfy the judgment immediately after the sale, which he had not done.
A witness for the plaintiffs, S. Bruyn, testified, that he was present at the sale by the master, and that some person proposed that the sale should be joint under the mortgage and judgment, and to commence with the former bid, and the purchaser to take a title under the master and sheriff, which proposition appeared to be acceded to by them. When the property was struck off by the master, he proposed, with the apparent approbation of the sheriff, to deposit 315 dollars with the witness, being the amount claimed by the sheriff, to remain until the master could write to the executors of Evertson, and obtain their consent; that on the 1st of June, after the sale by the master, he offered the sheriff to pay him the amount of the execution, and his fees, which he refused, unless the interest was also added; and the master said he had no authority to pay the interest, and offered to leave it with the witness, until the consent of the executors of Evertson could be procured, but the sheriff expressed no assent to the proposal; that the sheriff, soon after, sold the land to Sudam, for 655 dollars, and then said to the master and witness, that Sudam would give up the purchase, if the interest was paid, the object being to secure the interest; that Sudam, at the time of the purchase, knew of the difference between the master and sheriff. That on the 13th of June, according to his instructions from the executors of Evertson, he tendered the amount of the judgment, with the interest, to Sudam, who refused to accept it.
[ * 178 ]
Dodge, the master, who was a witness, testified, that the agreement between him and the sheriff was, that the judgment *shou!d be paid out of the master’s sale, and that the master and sheriff should each give a deed to the purchaser. That the witness offered to deposit with Bruyn the amount of the Ji. fa., to abide the orders of the executors of Evertson. That this proposal appeared so satisfactory that no difficulty was suggested. That Sudam was present, and knew of every circumstance relative to the claim of the sheriff, and the agreement; and that before the sale on the 1st of June, the witness informed Sudam of the question between him and the sheriff; that he received the purchase money, executed a deed, and deposited 315 dollars with Bruyn. That on the 31st of May he received the direction of the plaintiffs to pay the amount of the execution, and he offered the sheriff 191 dollars and 50 cents, with his fees, but the sheriff refused to receive it without the interest. That the witness then said he would deposit the money with Bruyn, and wait for further directions, to which the sheriff either expressly assented, or induced the belief of the witness that he did assent.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
