Smith v. Caswell

1 How. Pr. 133

• Court: New York Supreme Court
• Decided: April 15, 1845
• Status: Published

Opinion

Beardsley, Justice.

By the sale of Forbes’ land and its purchase by Smith, the judgment in favor of the latter was satisfied. That sale has not been set aside, but stands in full force; the judgment must therefore still be regarded as extinguished. Smith acquired by that sale all the interest of Forbes in the land, subject to prior liens. Moot has taken the place of Smith as such purchaser, and has acquired all the right which Smith had. The land has now been sold under a judgment lien prior to that in favor of Smith, and Moot became the purchaser at this sale. After satisfying the execution on which this sale was made, several hundred dollars of the sum bid by Moot remain in the sheriff’s hands, and Moot now asks to have this surplus paid to him towards satisfying the certificate he holds, or the judgment in favor of Smith upon which the land was first sold. This can not be done: the Smith judgment was extinguished by a sale of Forbes’ interest in the land, and there is no principle upon which a cent of this money can now be applied on it. Moot chose to purchase of Smith, what Smith took in satisfaction of his judgment, and he is entitled to all the right thus acquired. What it may amount to, the court can not say; but be it more or less, it lays no foundation for such an application as this. The statute authorizing lands to be redeemed from sale on execution, has no application to this question.

The motion must be denied with costs. Rule accordingly.