of Simmons v. Vandegrift

The first question that presents itself, is, whether the judgment was satisfied: if it was, the sheriff had no authority to. sell, and the deed could convey no interest to the purchaser. I have no difficulty in saying, that the testimony of the complainant has not satisfied me, that at the *59time of the sale the judgment of Smith and Loring was paid. The alleged statements of Wilson, the deputy sheriff, to Joseph Edsall, are contradicted by Wilson himself. Wilson declares that he never said to Edsall that the judgment was arranged or paid off, and that the fact was not so, but that at the time of the sale there was a balance due on the execution. The statement of Yandegrift to the same witness, made after the sale of the property, that the execution was paid, if to be received as evidence at all, is not entitled to much weight. The testimony of Mr. Ryerson, the attorney on record, is greatly to be relied on. He states, that according to his calculation, there was a balance due on the 7th January, 1819, (the time of the sale,) of $71 50, over and above sheriff's execution fees. He states further, that he called on Wilson to collect and pay over the balance, before the sale. And Wilson refers to the same statement, as having been received and acted on by him.

Some reliance was placed by the defendants’ counsel on the fact, that an attachment was taken out before the sale, lay Samuel Fowler, against Smith and Loring, viz. in 1817; and that the sum of forty dollars was attached in the hands of John Yan-degrift, and fifty-two dollars and fifty cents in the hands of Thos. C. Ryerson, Esq.: and it was argued, that if this balance was attached, the sheriff could not go on and sell under the execution. But is it certain that this money, thus attached in the hands of Yandegrift, was the money due on the execution? If it was, did the issuing of the attachment, and the subsequent levy, pay the judgment, so as to affect the title of an innocent purchaser? I think not. The legal process of execution, in the hands of the sheriff, could not be affected by the suing out of the subsequent attachment; much less could the title acquired under it be impaired.

But it is insisted on the part of the complainant, that the purchase was for a nominal consideration; and that the purchaser knew, at the time, of the outstanding incumbrance in favour of the complainant. The defendant, Darrah, admits in his answer, that he knew of the outstanding mortgage ; and alleges, that he purchased with the express intention of acquiring a prior right. This he had a right to do ; and without giving notice of such intention to the mortgage creditor. Such creditor might have purchased in *60the judgment at any time ; or, if that had been refused, he might, on payment of the money, have compelled an assignment of it for his own security, and thereby prevented the possibility of any danger arising from a sale under a judgment prior to his mortgage. It is quite probable, from the evidence, that the property was purchased by Darrah for less than its real value : but the sale was open, fair, and bona fide. There does not appear to have been any fraud or collusion between the purchaser and the sheriff, or any other person ; and under such circumstances, a mere inadequacy of price, would not justify this court in setting aside the sale and subsequent conveyance.

The cases cited by complainant’s counsel—1 John. C. R. 402, and 4 John. C. R. 118—arc not applicable. The one was a case of gross fraud and imposition, and the court granted relief, even against a judgment. In the other, the purchase was made for a consideration perfectly nominal, on a stormy day, and when no persons were present but tire sheriff and the purchaser: yet even in that case the sale was not set aside on the ground of fraud, but the purchaser was decreed to hold the property in trust for the benefit of all parties interested in it.

But what is the fact in relation to the alleged inadequacy of price? One witness says the property was worth, at the time of sale, about eight hundred or nine hundred dollars. Mr. Ryerson considers the property worth at that time about eight hundred dollars, if an indisputable title could have been made. In relation to the title, he says, it was known that the property had recently been surveyed by Joseph Sharp as vacant land, and was then claimed by him or those holding under him. It was also publicly known that the homestead farm of Richard Edsall had formerly been sold at sheriff’s sale, and purchased by Robert Boggs, and the lot in question was supposed to be included in that sale. The witness bid on the property once or twice himself: after he declined bidding any more, it was struck off to Darrah for a little over eighty dollars. When all these facts are considered, instead of being a proof of fraud, it ceases to be a matter of surprize that so small a sum was realized from the sale.

It was also urged by the complainant’s counsel, that the sale was fraudulent as to the mortgage creditor, because the goods and chattels of the defendant in the execution were not first sold, *61and applied to the payment of the execution. If the lands were sold before the goods, it was irregular, unless there was a written & ’ ° ’ ... request to that effect given by the defendant,; and of this the evidence is not satisfactory. But such irregularity cannot affect the sheriff’s deed, unless the purchaser had notice of it; which in this case is neither alleged or proved. Den v. Lecony, Cox N. J. R. 39 : and in Deforest v. Lute, 16 John. R. 127; it was held by the court, that a bona fide purchaser of lands at sheriff’s sale has no concern with the fact, that the sheriff has omitted his duty in not first selling the goods and chattels.

There is one more point that requires to be noticed. The complainant alleges that the mortgage given by Vandegrift to Edsall, and by Edsall assigned to Simmons, was given for a part of the purchase money of the property on which it was a lien; and therefore that it is to be preferred, and the sale is void as against that mortgage. This appears to me altogether distinct and aside from the equity set up in the complainant’s bill. It is no where alleged in the bill that the mortgage was given for the purchase money: nor is it claimed, that by reason of that, fact, the mortgage is entitled to priority. The complainant put himself before the court, upon the broad ground, that the judgments were paid and satisfied; that this was known to the purchaser and sheriff; and that they effected the sale fraudulently, to injure the complainant’s title. He should not depart too far, from the case vffiich the defendants were called on to answer. Still, as no objection has been interposed by the defendants’ counsel, in the argument, I shall raise no difficulty to a full investigation of the whole matter, especially as this part of the case was very strongly pressed.

The judgment under which Darrah, the purchaser, claims, wras obtained in the term of February, 1816, in the common pleas of Sussex, by Smith and Loring, against Richard Edsall, junior, Richard Edsall, and John Vaudegrift. Execution issued, returnable to May term, 1816. In the same month of May, Vandegrift mortgaged to Edsall the property in dispute. It appears by the testimony of Joseph Edsall, that Richard Edsall conveyed the property to Vandegrift; and that the making of the deed from Edsall to Vandegrift, and of the mortgage from Vandegrift to Edsall, were simultaneous acts; and that the mortgage was to secure part of the purchase money. The property was levied on *62as the property of Vandegrift; from which circumstance, it is reasonable to suppose, the levy was not made until after the sale and conveyance from Edsall to Vandegrift. Admitting it then to be true, in the fullest extent, as contended for, that according to the common law, independent of and prior to our statute on the subject, the purchase money was a lien on the property sold, to the exclusion of any incumbrances against the purchaser; how can the present case possibly be affected by it 7 Edsall the vendor was a co-defendant with Vandegrift the purchaser. The property was bound by the judgment, in the hands of Edsall, before the sale, as well as in the hands of Vandegrift after the sale. The sale did not affect the judgment lien. The mortgage could not impair the rights of third persons. If Edsall had not sold the property, he could not, by the confession of a judgment, the execution of a mortgage, or in any other way, have divested it of the judgment lien. Nor can it be affected by a sale. It would be strange indeed, if a debtor, by a simple conveyance of his real estate, and taking a mortgage for the consideration money, should be able to gain a priority over a prior bona fide judgment creditor, and utterly destroy his lien.

But it is said that tire sheriff levied on it as the property of Vandegrift: that this must have been after the sale, and consequently, after the mortgage: that Darrah only purchased the right of Vandegrift, and that right was subject to the mortgage. This is certainly true; and it is equally true, that both were subject to the prior judgment. The argument is, that at the time of the judgment, Vandegrift was not seized of this property: he had no right in it: the right was in Edsall; and that the right which Vandegrift acquired, was a right subject to the mortgage for the purchase money : that this right was all the sheriff could sell under his levy, and all that Darrah could purchase. The argument is plausible, but the conclusion is unsound and full of injustice. If the lot had been levied on before the sale from Edsall to Van-degrift, and as the property of Edsall, and been sold by the sheriff afterwards, as Edsall’s property, there could have been no room for doubt. This might have been done : and even after the conveyance of the properly from Edsall to Vandegrift, the sheriff might have levied on it as Edsall’s property, and probably in strictness ought to have done so. But this was not done. Can *63Edsall, or those claiming under him, now come into this court, and upon the common law doctrine of lien, actually supersede the incumbrance that wras on the property before the supposed lien could have existed ? Would it be equitable'/ Would it be just? If Edsall had not been a co-defendant in the original judgment, a different case would have been presented ; and the question might then have been raised, how far the mortgage, being for the purchase money, was to be protected against an anterior judgment outstanding against the purchaser. But that question cannot arise here.

Upon the whole matter, I am of opinion that the complainant has no claim against the defendants. Let the bill be dismissed.