Hurd v. Magee

3 Cow. 35

• Court: New York Supreme Court
• Decided: August 15, 1824
• Status: Published

Opinion

Curia.

This motion must be granted. The Sheriff’s sale and conveyance under Reeve's judgment divested the title of Smith, the judgment debtor. He then had no interest upon which the subsequent judgment, either of Baker or Welles, could become a lien. Having no -lien, it is well settled by the authorities cited, that Welles had no right to redeem.

Then it is said, that the judgment of Reeve, and the purchase of Hurd, were fraudulent as to the other creditors of Smith; but the suggestion is almost entirely gratuitous. There is nothing in the affidavits shewing any thing like fraud ; yet suppose a case of fraud made out, we could not try it in this summary form. Welles should have caused the proceedings to be stayed, or filed his bill in Equity, and prevented the second sale, till the question had been settled whether his judgment could be let in, on account of the. fraud, or not.

The Sheriff must execute the deed to Hurd, as it is applied for ; but we do not interfere with the conveyance to Welles, It can do no harm, if, as we hold, it passed nothing.

Motion granted.