WOODWOB.TH, J.
If the question had been submitted to the jury," whether the judgments were paid, I think the plaintiff would have failed on that ground. The evidence does not satisfactorily establish the fact of payment. The Judge, at the trial, being of opinion that this inquiry was immaterial, decided that the title of the defendant could not be affected, he being a bona fide purchaser, without notice. The only question submitted to the jury was, whether the conveyance from Clark Saunders to Edward C. Saunders, was fraudulent. The exception is taken to the charge, but not to the opinion of the Judge, excluding Mary Saunders, as an incompetent witness.
The rule laid down in Frier v. Jackson, (8 John. 507) is, that a bill of exceptions does not draw the whole matter into examination, but only on the points to which it was taken; and that the party excepting must lay his finger on those points which might arise, either, in admitting or denying evidence, or in matier of law arising from a fact not denied, in which either party was overruled by the Court.
The plaintiff made out a title in Edward C. Saunders, which entitles him to recover, unless that title was divested by the sale under the judgments. The conveyance to Edward C, Saunders, jun. cannot operate as a bargain and sale, for want of a pecuniary consideration. If it operates at all, it must be by way of covenant to stand seised to uses. That species of conveyance is good, when made upon the consideration of blood or marriage. In such case the statute of uses transfers the title to the use appointed. If the parties be of [640]*640one blood, the law implies a good consideration, arising fronts natural love and affection. In this case the conveyancé provides, that the lease shall remain in the hands of Mary Saunders, for the use, benefit and support of her son, Edward, until he arrives at the age of 21, at which time he is to come into possession of the lease; If it be admitted that Mary Saunders is to be considered as a grantee, upon trust, for Edward C. Saunders, jun. there is no tie of blood between the grántor ánd grantee. The deed, therefore, must fail, as a covenant, to stand seised.
The cases bn this subject áre ably examined in Jackson v. Sebring, (16 John. 515.) The words'used in the instrument, although in the form of a deed, would seem to denote an intention to devise. There are many cases where á writing, in this form, has been proved as a will. (4 Ves. Junr. 565.) On this supposition, the result is the samé as to the présént interest of Saunders, the elder. It follows, then, that Mary Saunders had no interest in the premises, and ought to have been received as a witness;
The question to be decided is, whether a title can be acquired under an execution issued on a judgment that has been paid. It is certain that the judgment is no lien, after payment which, is matter in pais and may be established by parol testimony.
In Sherman v. Boyce, (15 John. 443) the defendant, aS Deputy Sheriff, sold the plaintiff’s personal property on ari execution, after the same had been paid. The Court say, “ the debt must be deemed satisfied as to the judgment creditor ; and that fact being established, the law, founded on wise policy, considers the officer as fundus officio. The direct and sole object Of the fi. fa. Was to raise the money to satisfy the judgment creditor. That object being attained, the power conferred by the writ is spent.” So, also, in Carter v. Simpson, (7 John. 535) the same doctrine is recognized; The plaintiff, in that case, was a purchaser of some hay, at k constable’s sale, on execution. The defendant contended, that it was necessary to prove the execution and judgment. It was held, that the plaintiff was bound to prove the athority under which the constable acted. It was observed, that [641]*641’x if the constable had no authority to sell the hay, the vendee had no title.”
It is well settled that a vendee, under a lawful judgment and execution, shall not lose his property upon a reversal of the judgment by writ of error. But no case admits a title in the purchaser, when the Sheriff acted without authority. (Manning’s case, 8 Coke, 96.) Whatever may be the rights of a bona fide purchaser, without notice, it must be conceded, that as between the parties, the judgment and execution are extinguished by payment. Consequently, Russel Clark, a plaintiff in one of the executions, who paid to the Sheriff the amount of the other, and afterwards assumed the control of it, can never set up his purchase as making out a title.
The action of ejectment, on the demise of Clark and his partners, against Edward C. Saunders, might have been successfully resisted, by proving payment of the judgments and executions under which the premises were sold; but the objection not being taken in that suit, Saunders was dispossessed on the 1th of May, 1820. The next day the defendant entered, claiming title under Clark. He proved an assignment of the original lease to him, dated May 8, 1820, for the alleged consideration of $700, but there is no proof that any thing was paid, or secured to be paid. Hale, a witness, testified, that in a conversation with the defendant the day before he purchased, it was mentioned that Edward C. Saunders laid some claim to the premises, but upon what it was founded nothing was said. The defendant afterwards informed the witness, that when he purchased, the company indemnified him.
Enough has not been shown, to entitle the defendant to the character of a bona fide purchaser, for a valuable consideration, without notice. It is, therefore, not necessary to discuss the more difficult question, whether a bona fide purchaser can be affected by payment of the judgments. Admitting he cannot, the present defendant cap derive no benefit, his title being no better than that of the purchasers at the Sheriff’s sale. It is not sufficient to shew merely a good conveyance in form—payment of the consideration must be made out. It must be not secured to [642]*642be paid, for otherwise the purchaser would not be huriv This doctrine is well settled in the books. (3 Atk. 304. 3 P. Wm. 307. 1 Atk. 538. 2 Atk. 630. 2 Mad. 255.) Be-' sides> h *s here stated that the defendant is indemnified, and if so, cannot incur loss, whatever may be our decision. The defence of a purchaser for valuable consideration, is generally confined to a Court of Equity, and may be resorted to' when the defendant has as good a claim to the protection of a Court of Equity, to defend his possession, as the plaintiff has to the assistance of the Court, to assert his right. In such case, the Court will not interfere on either side. It can never be made use of as a substantive ground of Equity,for offensive operations by a plaintiff. It is not ground for relief, though it is a good defence. (16 John. 544. Ambler, 292.)
The defendant not having .shewn that he is a subsequent bona fide purchaser, must stand on the same ground as if Clark, the purchaser from the Sheriff, had never conveyed.
On the question of notice, I think a knowledge that Saunders
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WOODWOB.TH, J.
If the question had been submitted to the jury," whether the judgments were paid, I think the plaintiff would have failed on that ground. The evidence does not satisfactorily establish the fact of payment. The Judge, at the trial, being of opinion that this inquiry was immaterial, decided that the title of the defendant could not be affected, he being a bona fide purchaser, without notice. The only question submitted to the jury was, whether the conveyance from Clark Saunders to Edward C. Saunders, was fraudulent. The exception is taken to the charge, but not to the opinion of the Judge, excluding Mary Saunders, as an incompetent witness.
The rule laid down in Frier v. Jackson, (8 John. 507) is, that a bill of exceptions does not draw the whole matter into examination, but only on the points to which it was taken; and that the party excepting must lay his finger on those points which might arise, either, in admitting or denying evidence, or in matier of law arising from a fact not denied, in which either party was overruled by the Court.
The plaintiff made out a title in Edward C. Saunders, which entitles him to recover, unless that title was divested by the sale under the judgments. The conveyance to Edward C, Saunders, jun. cannot operate as a bargain and sale, for want of a pecuniary consideration. If it operates at all, it must be by way of covenant to stand seised to uses. That species of conveyance is good, when made upon the consideration of blood or marriage. In such case the statute of uses transfers the title to the use appointed. If the parties be of [640]*640one blood, the law implies a good consideration, arising fronts natural love and affection. In this case the conveyancé provides, that the lease shall remain in the hands of Mary Saunders, for the use, benefit and support of her son, Edward, until he arrives at the age of 21, at which time he is to come into possession of the lease; If it be admitted that Mary Saunders is to be considered as a grantee, upon trust, for Edward C. Saunders, jun. there is no tie of blood between the grántor ánd grantee. The deed, therefore, must fail, as a covenant, to stand seised.
The cases bn this subject áre ably examined in Jackson v. Sebring, (16 John. 515.) The words'used in the instrument, although in the form of a deed, would seem to denote an intention to devise. There are many cases where á writing, in this form, has been proved as a will. (4 Ves. Junr. 565.) On this supposition, the result is the samé as to the présént interest of Saunders, the elder. It follows, then, that Mary Saunders had no interest in the premises, and ought to have been received as a witness;
The question to be decided is, whether a title can be acquired under an execution issued on a judgment that has been paid. It is certain that the judgment is no lien, after payment which, is matter in pais and may be established by parol testimony.
In Sherman v. Boyce, (15 John. 443) the defendant, aS Deputy Sheriff, sold the plaintiff’s personal property on ari execution, after the same had been paid. The Court say, “ the debt must be deemed satisfied as to the judgment creditor ; and that fact being established, the law, founded on wise policy, considers the officer as fundus officio. The direct and sole object Of the fi. fa. Was to raise the money to satisfy the judgment creditor. That object being attained, the power conferred by the writ is spent.” So, also, in Carter v. Simpson, (7 John. 535) the same doctrine is recognized; The plaintiff, in that case, was a purchaser of some hay, at k constable’s sale, on execution. The defendant contended, that it was necessary to prove the execution and judgment. It was held, that the plaintiff was bound to prove the athority under which the constable acted. It was observed, that [641]*641’x if the constable had no authority to sell the hay, the vendee had no title.”
It is well settled that a vendee, under a lawful judgment and execution, shall not lose his property upon a reversal of the judgment by writ of error. But no case admits a title in the purchaser, when the Sheriff acted without authority. (Manning’s case, 8 Coke, 96.) Whatever may be the rights of a bona fide purchaser, without notice, it must be conceded, that as between the parties, the judgment and execution are extinguished by payment. Consequently, Russel Clark, a plaintiff in one of the executions, who paid to the Sheriff the amount of the other, and afterwards assumed the control of it, can never set up his purchase as making out a title.
The action of ejectment, on the demise of Clark and his partners, against Edward C. Saunders, might have been successfully resisted, by proving payment of the judgments and executions under which the premises were sold; but the objection not being taken in that suit, Saunders was dispossessed on the 1th of May, 1820. The next day the defendant entered, claiming title under Clark. He proved an assignment of the original lease to him, dated May 8, 1820, for the alleged consideration of $700, but there is no proof that any thing was paid, or secured to be paid. Hale, a witness, testified, that in a conversation with the defendant the day before he purchased, it was mentioned that Edward C. Saunders laid some claim to the premises, but upon what it was founded nothing was said. The defendant afterwards informed the witness, that when he purchased, the company indemnified him.
Enough has not been shown, to entitle the defendant to the character of a bona fide purchaser, for a valuable consideration, without notice. It is, therefore, not necessary to discuss the more difficult question, whether a bona fide purchaser can be affected by payment of the judgments. Admitting he cannot, the present defendant cap derive no benefit, his title being no better than that of the purchasers at the Sheriff’s sale. It is not sufficient to shew merely a good conveyance in form—payment of the consideration must be made out. It must be not secured to [642]*642be paid, for otherwise the purchaser would not be huriv This doctrine is well settled in the books. (3 Atk. 304. 3 P. Wm. 307. 1 Atk. 538. 2 Atk. 630. 2 Mad. 255.) Be-' sides> h *s here stated that the defendant is indemnified, and if so, cannot incur loss, whatever may be our decision. The defence of a purchaser for valuable consideration, is generally confined to a Court of Equity, and may be resorted to' when the defendant has as good a claim to the protection of a Court of Equity, to defend his possession, as the plaintiff has to the assistance of the Court, to assert his right. In such case, the Court will not interfere on either side. It can never be made use of as a substantive ground of Equity,for offensive operations by a plaintiff. It is not ground for relief, though it is a good defence. (16 John. 544. Ambler, 292.)
The defendant not having .shewn that he is a subsequent bona fide purchaser, must stand on the same ground as if Clark, the purchaser from the Sheriff, had never conveyed.
On the question of notice, I think a knowledge that Saunders had a claim, was enough to put the party on inquiry. Presumptive notice is where the law imputes to a purchaser the knowledge of a fact, of which the exercise of common prudence and ordinary diligence must have apprized him. (New. on Con. 511, and the cases there cited.)
The conveyance from Clark Saunders to his father was ' undoubtedly fraudulent as to creditors, and subsequent bond fide purchasers ; but as between the parties if was valid. It' is not drawn in question by a creditor having a judgment, or standing in a situation to contest the fraud, or a subsequent bona fide purchaser. The judgments being paid, the direction to the Sheriff to sell, and the purchase of the premises by Russel Clark, were fraudulent acts, and cannot give him a right to question the conveyance between Clark Saunders and his father. This was an immaterial question, submitted to the jury: I am of opinion, that the exception was well token, and consequently that a new trial be granted, with cost's to abide the event.
Sutherland, J. concurred.
[643]*643Savage, Ch. J.
If the lease from Clark Saunders, to Edward C. Saunders, and from him to E. C. Saunders, jun. are valid, then Mary Saunders was an incompetent witness. The express object of the conveyance was, to place in her hands a fuhd for the support of her son. She would, therefore, be relieved as far as the fund extended, from an obligation, which would otherwise be binding upon her. The lease, then, is for her benefit, and that of her husband, as parents of Edward C. Saunders, jun. The instrument, however, cannot operate as a bargain and sale, for want of a pecuniary consideration ; nor as a covenant to stand seised, as there is no relation of blood between the grantor and Mary Saunders, nor by way of assignment for want of livery of seisin, the estate attempted to be conveyed being a freehold.
The abstract question, whether a sale by a Sheriff upon an execution which has been paid, is valid, is one of some difficulty. On the one hand, debtors should be protected from a sacrifice of their property, after payment of their debts; and on the other, innocent purchasers, who have parted with their money on the faith of a sale, by virtue of legal process, regular upon its face, and supported by a regular judgment, ought to be protected in their purchases.
In Sherman v. Boyce, (15 John. 446,) Platt, Justice, in delivering the opinion of the Court, lays down the law in substance, that payment of the money unconditionally to the plaintiff is a satisfaction of the debt; and, therefore, the officer holding the fi. fa. becomes functus officio—the process having attained its object by payment and satisfaction of the judgment, the power conferred by it is spent.
In Jeanes v. Wilkins, (1 Ves. Sen. 195,) Lord Ch. Hard-niche says, “ To avoid the sale and title of the defend-' ant, it must be proved that tbefi.fa. was void, and conveyed no authority to the Sheriff; for it might be irregular, and yet if sufficient to indemnify the Sheriff, so that he might justify in an action of trespass, he might convey a good title, notwithstanding the writ might be afterwards set aside.”
This doctrine was fully discussed in the case of Woodcock v. Bennet, in the Court of Errors, in April last, by Wood-. [644]*644worth, Justice, in delivering liis opinion, which was unanimously concurred in by the Court.
It may, therefore, be considered settled law, that a bona purchaser, at a Sheriff’s sale, acquires a valid title as, against the defendant in the execution, unless it is not only voidable, but absolutely void.
The same reasons of policy which secure to an innocent purchaser a valid title, do not exist where the judgment creditor becomes the purchaser ; and it would be the height of injustice to allow the party, guilty of the ir-, regularity, to take advantage of it. The case of Hemson v, Deygert, (8 John. 333,) contains nothing contrary to this principle. In that case the Court decided, that land could not be sold a second time, by virtue of the same judgment and execution, while in the hands of the purchaser at the first sale. And in Jackson v. Benedict, the question was, not whether there was any irregularity In issuing the execution, but whether the plaintiff had not lost his priority upon certain property of the defendant, and the title, in consequence, thereof, was vested in another person.
In the cases last cited, the parties complaining of the effect of the executions, were bona fide purchasers, not parties to, the executions, and possessing no other remedy than by defending the property they had purchased and paid for.
In.the case now under consideration, the party, seeking to. avail himself of the irregularity of the sale, was a defendant, who stood; by and looked on while his property was sold by virtue of an execution, which had been paid, as he now alleges. No effort was made on his part to stay the proceedings, or set aside the sale, either by motion to the Courf, or audita querela. Had the property been purchased by a third person, a stranger to the transaction between the parties to the execution, I should deny the plaintiff’s right to recover.
The property passed into the hands of the defendant, who cannot, in my judgment, be considered a bona fide purchaser, as he purchased from the plaintiff in the execution, and notice is brought home to him. He knew that Saunders made some claim. This was sufficient to put him upon inquiry. It [645]*645piust be presumed that he did enquire, as he took an indemnity against the claim. The cases cited, of Jackson v. Given & others, (8 John. 137) and Meghan v. Mills, (9 John. 64,) are not so strong, nor have I found any case where facts like these are held insufficient notice.
The contest here is virtually between the original parties; and, as between them, I can see no objection to an inquiry into the regularity of the sale. The evidence offered was not to contradict the Sheriff’s deed, as in Jackson v. Croy, (12 John. 427) and Jackson v. Van Der Heyden, (17 John. 167) but to shew that the plaintiff in the execution proceeded to sell contrary to the rights of the defendants, and, in my opinion, it should have been received.
The question submitted to the jury was, whether the conveyance from Clark Saunders to E. C. Saunders wa's not fraudulent and void ; and the jury were warranted by the testimony in their verdict.
But still, if the judgment had been paid, the sale would have been void, as between the parties. The evidence produced rather proved that no payment had been made; but, in my opinion, the Judge erred, in refusing to submit that testimony to the jury, and a new trial should be granted.
New trial granted.