Miller v. . Earle

24 N.Y. 110

• Court: New York Court of Appeals
• Decided: December 5, 1861
• Status: Published

Opinions

At the time of the sale of Heth's property, and the payment of the proceeds over to the defendants in this action, it does not appear that these plaintiffs were in a position to challenge or object to that sale and payment. If Heth chose to adopt this form of paying the defendants the amount he owed them, it is not perceived that any objection can be taken by these plaintiffs to such payment. Heth certainly would be estopped from alleging or setting up that the judgment was not valid, or, in other words, was not a judgment, and after he stood by and saw his property sold under an execution issued upon it, and the proceeds paid over to the defendants, he would be estopped from recalling such payment. The plaintiffs are certainly in no better position than that occupied by Heth, and as the transaction was completed before the recovery of the plaintiffs' judgment, they are not in a position to impeach it. The judgment appealed from should be affirmed.