Jackson ex dem. Whitlocke v. Mills

13 Johns. 463

Opinion

Spencer, J.

delivered the opinion of the court, The case of Jackson v. Steenbergh, (1 Johns. Cas. 153.,) shows that the parol evidence, given by. Bingham, was admissible ; and it was proved that Whitlocke was the mere'trustee of Harder, in taking the sheriff’s deed,, under the sale On the júnior-judgment; and the deed from Whitlocke to Harder was the mere execution, of his trust. Harder- only was beneficially éntrusted in that purchase, as it was made for him, and he paid the consideration money, Whitlocke never had any interest.under that deed, and, therefore, his execution of the trust Could not operate as an estoppel to any title he might thereafter acquire, in his own right, to the samé lands. Independently of the parol evidence, that the. first purchaser was subject;to the prior Ken, the law would produce that result. Whitlocke, t.heh, acquired, by his purchase under the senior judgment, a title paramount to that of Harder's under the junior judgment, unless Harder's forbidding the sajé Will render the sale, and deed under it,, inoperative. It may be well questioned whether he could forbid the sale, rightfully, as JfhiUócke was interested, in it jo the amount of J 00 dollars? that as it may, a sale actually took place, and the title passed to Whitlocke under it, ancfit is too late to question the sale, at all events, in this collateral way.

The only mode in which that question could arise, would have been on a direct application to this court, or a court of equity, to set aside the deed. The deed being warranted by the judgment and execution, we cannot now entertain the question, how far the sheriff erred in selling, although forbidden by the nominal plaintiff in the execution. The legal title is in the lessor of the plaintiff.

Judgment for the plaintiff.