Bigelow v. Finch

By the Court,

It was enough, prima facie, for the plaintiff to prove a judgment, execution, and purchase by him at the sheriff’s sale of the premises in question, the defendant’s possession, and that the judgment debtor was in possession at the time of docketing the judgment. Possession, unexplained, is an interest in land that may be sold under a judgment and execution. And, as a general rule, it is no answer for the defendant to say that he has no title. But the statute has made certain exceptions. Estates at will or by sufferance, are not liable to sale on execution. (1 R. S. 722, § 5.) Nor is the interest of a person holding a contract for the purchase of land. *500(1 R. S. 744, § 4.) Where the possession is at will, therefore, or by sufferance, or where it has been taken by virtue of and under a contract of purchase, it is not such an interest as may be sold; and the defendant is at liberty to show either of these facts to defeat the plaintiff’s recovery. Such defense may be set up by the defendant in the judgment, when sued in ejectment by the purchaser at the sheriff’s sale. (Griffin v. Spencer, 6 Hill, 525. Colvin v. Baker, 2 Barb. S. C. Rep. 206. Tooley v. Dibble, 2 Hill, 641, 643.) If, therefore, Orry G. Harris would not have been precluded from insisting on these matters of defense, it can hardly be contended that the defendant Finch occupies a worse condition than his grantor. Harris quit claimed all his interest in the premises, to Finch. By that conveyance, Finch became the owner of whatever interest Harris had in the premises ; but the interest or rights of Harris could not, certainly, be enlarged by any sale or conveyance he might make, and the defendant Finch was at liberty to set up any defense that Harris might have interposed, if he had remained in possession and been made the defendant.

The plaintiff can only recover on the strength of his own title. He claims to have obtained the interest of Harris, by his purchase at the sheriff’s sale. This may be controverted either by Harris or any other person, who is at liberty to show that the interest of Harris was not the subject of a sale by execution, and thus to invalidate the title on which the plaintiff rests his claim. (Kellogg v. Kellogg, 6 Barb. 116.)

The fact that the defendant had taken a quit-claim deed from Harris, and entered into possession under it, had no bearing upon the admissibility of the evidence offered. Even as between Harris and Finch, the latter would not have been estopped from questioning the title of Harris. (Osterhout v. Shoemaker, 3 Hill 513, 518. Sparrow v. Kingman, 1 Comst. 242. Averill v. Wilson, 4 Barb. S. C. Rep. 180. Hill v. Hill, Id. 419. Kenada v. Gardner, 3 Id. 589.) The cases cited show that there is no estoppel as between grantor and grantee. It exists only when there is an obligation, express or implied, that the occupant will at some time, or in some event, surrender the possession; as *501between landlord and tenant, or as between vendor and vendee before conveyance. The defendant was at liberty, if necessary to his defense, to show that Harris had no title, and that he received none by virtue of his quit-claim deed. An estoppel has never been raised on a deed poll, or on a conveyance between grantor and grantee. And the decisions by which it was made applicable, in a claim for dower against a grantee of the husband, have been overruled in the court of appeals, in Sparrow v. Kingman.

Harris, Parker and Wright, Justices.]

The defendant ought, therefore, to have been permitted to prove that Harris had no such interest as could be sold on execution, and the judge erred in excluding the evidence.

It is unnecessary to examine the other questions raised by the defendant. They are all of a character to be obviated on another trial.

There must be a new trial; costs to abide the event.