Jackson ex dem. Ten Eyck v. Walker

4 Wend. 462

• Court: New York Supreme Court
• Decided: May 15, 1830
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

The variance between the judgment and execution was a clerical mistake' and amendable. (5 Johns. R. 100.) As to the objection that the premises sold should have been described in the return to the execution, and that parol evidence was inadmissible to shew the identity of the premises sold and conveyed by the sheriff’s deed, I find no authority requiring the land to be particularly described in thq sheriff’s return : it must be described in his advertisement of sale ; but even should the sheriff not comply with the directions of the statute in that respect, his neglect would not affect the title of the purchaser at the sale und er the execution.

On the trial, the declarations of Mrs. Prohasco shewing that the object of taking the deed in the name of the defendants was to avoid the payment of the debt due the lessor of the plaintiff and to secure the property from Probasco’s creditors, were admitted in evidence subject to the opinion of this court. If this was proper evidence, it was so because the defendants derived title to the property through their mother, and that she was the owner and in possession thereof at the time. It seems to me unnecessary to discuss this question. There can be no doubt that when the judgment was obtained against her and her husband, she had an interest in the land on which the judgment became a lien. (9 Cowen, 85.) She having paid the consideration and procured the deed to be executed to the defendants, they became seised to her use in trust for her, and her interest was the subject of sale by the sheriff. (1 R. L. 74.) Without enquiring, therefore, into the question of fraud, there is enough shewn to authorize a recovery. The plaintiff is entitled to judgment.