Richards v. Varnum

New York Supreme Court

Richards v. Varnum

8 How. Pr. 79

DecidedSeptember 15, 1852

StatusPublished

This text of 8 How. Pr. 79 (Richards v. Varnum) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Richards v. Varnum, 8 How. Pr. 79 (N.Y. Super. Ct. 1852).

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Opinion

C. L. Allen, Justice.

I can see no objection to granting this motion. The defendant in the executions consents to it, and no injury can can arise to any other individual, who may have any [81]*81rights, accruing under the sale, if any there are. The court has pronounced the sale of lot No. 7 to be a nullity under § 4-6 of 1 R. S. 744, and which have received a construction in Griffen vs. Spencer (6 Hill, 525), and in 6 Barb. 116, 129; 10 Paige, 562; 2 Barb. Ch. 458. Varnum entered into possession under his contract to purchase from Rogers, and never having received a deed the court decided that the legal title was in Rogers, and that Varnums possession or interest could not be sold under execution. I can perceive no harm, therefore, in striking from the certificate of sale, what the court has already decided to be of no effect-or benefit whatever.

In Mulks vs. Allen (12 Wend. 253), the court vacated a sale where the plaintiff had inadvertently bid a sum less than the amount intended. In Smith vs. Hudson (1 Cow. 430), the sheriff was permitted to amend his certificate, by inserting therein a parcel of land which he had sold on execution, but had omitted to mention in the certificate. So the docket of judgments has been corrected, where a mistake of the clerk occurred in the amount of the judgment (Hunt vs. Grant, 19 Wend. 90; and see Bixby vs. Mead, 18 Wend. 611). In Wright vs. Hooker (4 Cow. 415), a deputy had, by mistake, advertised the defendant’s farm for sale, at the house of the defendant, upon a fi. fa. under a wrong description; but he sold the farm and gave a certificate of sale, by a full and correct description, including the number of the lot. The sale took place not at the defendant’s actual dwelling house, but at his late dwelling house. The deputy swore that he acted in good faith, and a motion was made to vacate the sale, which was granted by the court, on payment of costs, it being satisfied that the proceedings were in good faith. There is no pretence here but that the whole proceeding w'as in good faith, and that both the sheriff and Russell believed that Varnum had such an interest in the lot as could be sold under execution.

Leave to amend is granted on payment to the attorney of Rogers f 7 costs of opposing this motion.

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C. L. Allen, Justice.

I can see no objection to granting this motion. The defendant in the executions consents to it, and no injury can can arise to any other individual, who may have any [81]*81rights, accruing under the sale, if any there are. The court has pronounced the sale of lot No. 7 to be a nullity under § 4-6 of 1 R. S. 744, and which have received a construction in Griffen vs. Spencer (6 Hill, 525), and in 6 Barb. 116, 129; 10 Paige, 562; 2 Barb. Ch. 458. Varnum entered into possession under his contract to purchase from Rogers, and never having received a deed the court decided that the legal title was in Rogers, and that Varnums possession or interest could not be sold under execution. I can perceive no harm, therefore, in striking from the certificate of sale, what the court has already decided to be of no effect-or benefit whatever.

In Mulks vs. Allen (12 Wend. 253), the court vacated a sale where the plaintiff had inadvertently bid a sum less than the amount intended. In Smith vs. Hudson (1 Cow. 430), the sheriff was permitted to amend his certificate, by inserting therein a parcel of land which he had sold on execution, but had omitted to mention in the certificate. So the docket of judgments has been corrected, where a mistake of the clerk occurred in the amount of the judgment (Hunt vs. Grant, 19 Wend. 90; and see Bixby vs. Mead, 18 Wend. 611). In Wright vs. Hooker (4 Cow. 415), a deputy had, by mistake, advertised the defendant’s farm for sale, at the house of the defendant, upon a fi. fa. under a wrong description; but he sold the farm and gave a certificate of sale, by a full and correct description, including the number of the lot. The sale took place not at the defendant’s actual dwelling house, but at his late dwelling house. The deputy swore that he acted in good faith, and a motion was made to vacate the sale, which was granted by the court, on payment of costs, it being satisfied that the proceedings were in good faith. There is no pretence here but that the whole proceeding w'as in good faith, and that both the sheriff and Russell believed that Varnum had such an interest in the lot as could be sold under execution.

Leave to amend is granted on payment to the attorney of Rogers f 7 costs of opposing this motion.

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Bluebook (online)

8 How. Pr. 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richards-v-varnum-nysupct-1852.

Opinion

C. L. Allen, Justice.

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