Hewson v. Deygert

8 Johns. 333

Opinion

Per Curiam.

It is not requisite that the court shoiild interfere in this summary way, by rule, to prevent the sheriff from selling property on execution which is alleged not to belong to the defendant. The party having title has his "remedy by action, if he sustains injury, and no sale by the sheriff will affect the title to lands not subject to sale under the execution. But though the motion is denied on this ground, the court think proper to intimate their impression on the question which has been raised, lest the parties may be misled by their silence. They give no decided opinion, as the point may possibly hereafter come before them in a regular course of litigation; but, under their present view of the subject, they consider that the lands in question, in the hands of the purchasers are no longer bound by the judgment. It is to be presumed, that the lands sold, under the former execution, for their value, and the purchase is to be con- • sidered as absolute, in respect to the lien or judgment under the authority of which they were sold. The sale.extinguished the lien to the lands sold. The proper course, both on sales of real and personal property, is to aell only so much of the property charged, as will pro- .... - r V . , , . , . r , bably satisfy the execution, and which can conveniently and. reasonably be sold separately. A party who sells under a power, is not bound to sell, at once, all the property bound by the power, and in many cases, it would be an act of great oppression to do it. (Co. Litt. 113. a. 1 Caines’s Cases in Error, 18. Noy, 59.) But if he does, do it, he ought not to be permitted to sell the property a second time, to satisfy new and growing instalments. If he wishes not to exhaust at once his resources under the lien, he should sell no more of the estate than was requisite to satisfy the instalment due.

Motion denied.