Smith v. Corey

3 E.D. Smith 642

• Court: New York Court of Common Pleas
• Decided: March 15, 1857
• Status: Published

Opinion

Ingraham, First J.

This is a motion to compel the sheriff to execute to the purchaser a deed of the premises sold by him pursuant to the judgment therein.

The action is brought to enforce a lien under the mechanics’ lien law. The judgment directed the sheriff to sell the interest of the defendant in the premises at the time of filing the notice to create the lien, and to execute a deed therefor to the purchaser. The sale was made by the sheriff, who refuses to give a deed, but offers a certificate of sale, in the same manner as under sale of a debtor’s interest and lands under ordinary executions.

It would be sufficient for this case to say that the judgment of the court directs the sheriff to make the sale of the defendant’s interest and to execute a deed therefor to the purchaser. As an officer of the court it is his duty to obey the judgments and decrees of the court, and it is not within his province to say that any judgment so rendered was erroneous, or to refuse obedience to its directions. So long as the judgment remained, the sheriff and defendant were alike bound by it, and if that judgment directed an absolute sale of the property, and the execution of a deed therefor to the purchaser, the sheriff could not with any propriety go behind such judgment to inquire whether it was properly rendered. If the judgment was erroneous it could only be corrected by the defendant on appeal, and until so corrected it was the duty of the sheriff to obey its provisions.

For the reasons stated in the case of Randolph v. Leary, decided by me at this term, March, 1857,

(a) I am of the opinion that the judgment was not erroneous, that the sale of the defendant’s interest is absolute, that the defendant has no right of redemption and that the sheriff should execute the deed as required by the plaintiff on this motion. I refer to my opinion in that case for the reasons upon which it is founded.

There is, however, a difficulty in this case which prevents the granting of this motion.

On referring to the certificate of sale I find that the sheriff sold the property described and not the interest of the defendant in the property on the day of filing the notice as directed by the judgment. That such ..property was sold,, also subject: to mortgages and judgments thereon, andean-order directing the sheriff to give a deed of the premises ,as sold, would , direct a. conveyance of the property and not of . the .interest .of the defendant in the properfy.at the time of, filing the notice to create the lien.

The sale in this form was erroneous,.and.npt warranted .by the judgment. The statute is positive in directing what shall be sold. The first section of the .amendatory act, Sess. Laws, 1855, p. 760, provides that the judgment shall direct.the sale, of the. interest of the owner, in the land, to the, extent.,pf: the right of, the owner at the time of ..the filing of., the notice, of lien. The first section provides, that such sale shall be. made subject to any prior liens existing therepn. . .

It is not necessary to. sell , in express ,terms subject, to mortgages, or other encumbrances, because i,f the sale, is properly-made of only the defendant’s interest, such sale.will, as matter of law, be subject to the rights and interest, of any other person in the premises.

The motion must on. this account be denied, and. a resale, be directed at which the defendant’s interest only, must be sold.

Ordered accordingly.

Ante, p. 637.