Woodworth, J.
The first objection js, that the consideratio'n stated in the agreement, has not been paid. So far as respects the order drawn on Pelton, this is true. It is equally clear, as a general rule, that the instrument on which a party seeks relief in equity, will not be specifically enforced, unless it be supported by a valuable, or, at least, what equity calls a meritorious consideration. (1 Mad. 126. 4 John. Ch. 500.)
The appellant cannot, however, rest his defence on this ri 77 ground ; for having accepted a draft on Pelton, he was bound to use ordinary diligence, before any legal or just claim could arise to demand payment of the drawer. It does not appear that notice was given to Bennet, or any request ever made afterwards for payment.
Indeed, it is evident the appellant did not consider the order as the source of indemnity. The questionable nature of the title acquired at the Sheriff’s sale, shortly after, pointed out the expediency of obtaining title under the
mortgage, and to that object his views were directed. He cannot, therefore, now be permitted to resist the respondent’s claim, on the ground that the consideration was not actually paid ; when by his laches he has exonerated him, and by the course he pursued, manifested an intention not to consider the first contract any longer obligatory.
I will therefore proceed to examine the question, whether the purchase under the execution vested a valid title in the appellant. The agreement to convey, had reference only to the title then held, and cannot be applied to any subsequently acquired.
Every material allegation should be put in issue by pleadings.
Sale not avoided where judgment set aside for error.
Otherwise as to irreguJarity.
There is no allegation that the respondent claims relief on the ground that the appellant afterwards procured title' by purchase under the mortgage. It is well settled, that, every material allegation should be put in issue by the-pleadings ; and no interrogatories can be filed, which da not arise from, or relate to some fact charged in the complainant’s bill. (James v. M’Kernon, 6 John. 543.) Admitting, however, that the respondent’s bill embraced the purchase under the mortgrge, no equity could arise whereby the respondent can claim the benefit of any interest in that purchase ; for it is fully proved that he declined paying any part of the purchase money due on the mortgage, and repeatedly expressed himself satisfied with the title he expected to derive from the appellant ; that he would not exert himself to raise the money, nor give himself any concern on that subject. Having thus voluntarily chosen to repose himself on the title acquired at the Sheriff’s sale, he must abide the decision on that title.
If, then, the appellant, at the time, had no title,. there is nothing upon which a decree for specific performance can operate. The execution was set aside by the Supreme Court for irregularity, at the August term, 1816. Whether this would invalidate the purchase, has not been expressly decided in our Courts.
It is well. settled, that where a judgment is reversed for-error, the sale under the execution shall not be avoided. (8 Coke, 192, Manning’s case.) The reason given is, that great inconvenience would follow a contrary doctrine, so that none would buy of the Sheriff in such cases, and execution of judgments would not be done. In 8 Coke, 284, it was held, that if an erroneous judgment is given, and the Sheriff by force of a fieri facias, sell a term of the defendant, and afterwards the judgment is reversed by writ of error, yet the term shall not be restored, but only the money i because the Sheriff was commanded and compelled by the King’s writ to sell it. (2 Bac. 506.) The uniform current of authority sanctions this doctrine.
. But there is a marked distinction between judgments re-*, versed for error, and executions set aside, for irregularity» [735] in the latter case, the party is never excused, if the irregularity be such as renders the process void. One case is the fault of the party himself* the other is considered the error of the Court. (2 Wils. 385. Roe v. Milton, 1 Lev. 95. Carth. 275.) It is held, that by vacating the judgment, it is as if it never had been. (2 Bac. tit. Execution, 740. 1 Lev. 95.) In Parsons v. Lloyd, (3 Wils. 345,) De Grey, Chief Justice, observes, “ there is a great difference between erroneous process and irregular, (that is to say void) process. The first stands valid and good until it be reversed ; the latter is an absolute nullity from the beginning. The party may justify under the first, until it be reversed ; hut he cannot justify under the latter, because it was his own fault that it was irregular and void at first.” This distinction may serve to explain the cause, why a party can be restored to property, sold under an irregular, which is 'considered a void execution. With respect to acts done under it, or any protection derived from it, it is the same as if there had been no exe cution. Not so on a reversal for error. There the execution is valid to the time of reversal. It confers a right on the Sheriff to sell, and sanctions all legal acts done under it.
Difference between erroneous and irregular pro53 cess.
Sale uncléi latter, to an innocent pur* chaser, may be avoided.
Form of rule setting asido process.
But it has been contended, that in either case, the purchaser is equally innocent, and has no knowledge whether there is error or irregularity. This reasoning is undoubtedly plausible, but while we are considering the reason of the riile, it must not be forgotton that the wisdom of the law is attentive to the rights of all parties. Would it not bé unreason* áble (and I will subsequently shew it unnecessary for the purposes of equal justice) to push the doctrine to the extent contended for ? The plaintiff in an irregular execution cannot justify the imprisonment of the body of the defendant, because it is considered void. Why should not his property be equally protected ? If the remedy is only against the plaintiff, who has abused the process of the Court, in many cases, it might be Worse than the disease. It is here proper to observe, that thé rulé setting aside the execution in this Case, states the cause to have been for irregularity merely* Such, I believe, is the general form of entry in our Courts, [736] whether the facts make out a cáse of void or voidable, processJ When, however, the term irregularity is used; and- unexplained, it must be understood, as in Pdrsons v. El'oyd, before cited, and refers to void process. If there had been no explanation of the rule, the execution wo'uld have been considered Void, and the proceedihgs under it a nullity. This is well settled in Read v. Mdrkle, (3 John. 523.) In that 1 ‘ > { , cáse, goods had been taken add sold on an execution, which . was afterwards set dside for irregularity. It was held that the execution, being irregular, was a nullity, and that the time when the-statute of limitations began to run, was from the first taking of the goods, and not from the' time when the execution was set aside. In the opinion of the Court, it is laid down, that the case could not be distinguished from that of Parsons v. Lloyd, and that the execution being admitted tó be irregular and unexplained, is tó be considered as void.
i. Cl 111 (,'/ V G” pdu.ri.ty, what means.
Whether the void”bein°^after year and
But the gródnd of irregularity,' in the present case, does appear. The appellant, in his answer, says it was because the execution issued after, a year and a day, without scire facias. I have not discovered any evidence expressly to prove this allegation. It seemed, however,' on the-argument, to be a conceded point. The invalidity of the title was contended on that ground. By thé testimony of Phinehas Bennet, it appears that the appellant informed him the execution was set aside, because the judgment had not been revived against one of the defendants, who had béen dead more than ¿ year and a day; and that it was understood, by the appellant, the respondent, and the witness, that the title derived under the sale would not be invalidated by the order of the Court setting aside the execution.
Benjamin Pelton testifies, that Richard W. Felton died on the 9th day of December, 1812. The legal effect of this latter irregularity was .not, as I remember, noticed by the counsel: the argument was confined to the former.
On this state of facts, the validity of the sale turns on the question, whether the execution is to be considered as void or voidable, more than a year and a day having elapsed after iudgment, and before execution, and there having been no revival by scire facias. I am of opinion that, for this cause, [737] tíre execution was voidable merely : that all legal aids done under it, before it was set aside, were valid; and, consequently, the sale cannot be impeached on this ground.
A strange!protected in his purchase unde • a voiefable ft. fa,
In the case of Jackson v. Robins, (16 John. 537) the present Chancellor considered the effect of irregularity, where a judgment had not been revived by scire facias. The decision was, that it was not competent to urge it collaterally, in an action of ejectment. He observes, “ the better opinion is, that if execution issue without any scire facias, the sale under it would not be void. It might have been voidable, and liable to have been set aside by the Supreme Court, as irregular. But, until that was done, the title would have stood.” It will be seen here, that this was not the point before the Court. The intimation that the title might be affected by setting aside the execution, is rather a suggestion in the course of argument, than the result of any decided opinion formed on the subject. Indeed, if we attend to the definition of voidable process, that it stands good until reversed-, and can only be reversed on application of a party to the suit, we shall arrive at a contrary conclusion. A stranger, in such a case, who becomes a purchaser, will be protected. When his title was acquired, the execution was valid. He cannot be affected by subsequent acts, over which he had no control.
In Jackson v. Bartlet, (8 John. 361,) it was held, that though the execution may have issued a year and a day after judgment, without revival by sci. fa. it was only voidable at the instance of the party against whom it was issued : It was a good authority for the sale.
So, also, in Reynold's v. Corp Douglass, (3 Caines, 271) it is laid down, that “ if, instead of bringing debt or scire facias on the judgment, the plaintiff sues out a ca. sa. the Court will set it aside ; but it has often been adjudged, and it is well settled, that the party is not responsible, in trespass, for suing out the ca. sa. for that the execution was voidable, only, and was a good justification until reversed. I think, therefore, it may be safely concluded, that this was not such an irregularity as, in any manner, to affect the sale.
Whether* void by defendant’s death.
If against .goods and chattels, it would ■ have been regular.
The charge as to the personalty survived against B. Belton.
Where a sci. fa. should, in general issue, on a change of parties.
Charge being on realty, did not sur-
The other ground, that Richard W. Pelton died after judgment, and before execution, presents a question very different, in its nature and consequences, from the former. This I will briefly consider. The question here will be, whether the execution was not necessarily void, at the time it issued,inasmuch as it directs the sale of a defendant’s property, who was not then in existence, without first calling on his representatives, to whom that property, if he had any, must have passed, and who, being strangers to both judgment and execution, had no day in Court to shew that the process was either voidable or void.
If the execution had been against the goods and chattels, only, it would have been regular; for, at the common law, the charge upon the judgment, being personal, survived; so that where there are two or more defendants in a personal action, and one dies after judgment, execution may issue against the survivor, without a scire facias. The execution, however, must be taken out against all the defendants ; otherwise it will not be warranted by the judgment. (1 Lord Raymond, 244. 1 Sal. 319. 2 Tidd, 1029.) The reason given is, that there is no alteration of the record,- nor any1 new party made liable to the execution.
The charge upon the judgment, as to the personalty, survived against Benjamin Pelton; the executor of Richard was not liable at law. If he had been, then a scire facias had been requisite, to make him a party to the judgment. The general rule is, that where any new person is to be bet»' ter or worse by the execution, there must be a scire facias» (Pennoir v. Brace, 1 Salk. 3,19.)
In this case, the charge was on the realty, and did not survive ; the lands of both defendants were holden, the execution issued against both ; the right and title of hath were sold, and conveyed by the Sheriff to the appellant. For aught that appears, at the time the judgment was rendered, the deceased defendant had equal title to the lot with the survivor. This execution, then, was manifestly irregular, for we have seen that a str'anger cannot be affected with* out making him a party.
An execution cannot be said to be void,able merely, unless there is a party who pan avoid it.
He may arrest the sale ; otherwise it is valid, if made to a bona fi&$purchaser,
When process shall he said to he irregular, in. general.
When irregular on its face
A scire facias ought to have issued against the survivor, to show why the plaintiff should not have execution against him of his goods and chattels, and of his lands and tenements ; and against the heirs and terre-tenants of the deceased, to show why the plaintiff should not have execution of the deceased’s lands and tenements, without mentioning any goods. (2 Tidd, 1033. 2 Saund. 72.) ,
I apprehend the reason why an execution is considered voidable merely, when issued on a judgment where no change of parties is required, and that an execution is void, when issued to charge the lands, after the death of the defendant, without scire facias, will be apparent on this further consideration: the term voidable implies, that there is a party who may avoid. When issued after a year and a day, and the parties not changed, the defendant may or may not, at his election, raise the question of regularity. The law permits the plaintiff to issue it, and considers it regular at the time of issuing, subject to be defeated, on the application of the defendant. If he apply before execution executed, the sale will be arrested, and all proceedings under it pease ; if he lie by until after sale, then, on the principle that the execution is erroneous process, and good until reversed, he cannot recover the goods sold ; he can only call on the plaintiff for the money recovered. In the other case, the act of issuing the execution was not warranted by law. This forms the substantial distinction between void and voidable process.
The rule is correctly laid down in Luddington v. Peck, (2 Con. Rep. 702) by Gould, Justice : “ the irregularity must be in the process itself, or in the mode of issuing it; it cannot be irregular when sued out according to the established course of practice.” If the state of facts existing at the time the process issued, be such as to render it unlawful, that is sufficient. We are not to understand by appearing irregular on the face of the process, that the irregularity is stated in the writ. It frequently appears by reference to extrinsick circumstances. Thus, a writ tested and returnable out of term, is irregular. When and where the terms are held by law, and how long the Court wa,s in session, is not stated in [740] the writ; á knowledge of this is derived from other sources-,, and yet it may truly be said the writ is bad on the face of it. ' 'n the present case, on reading the writ, it does not ap- • pear that Richard W. Pelton was dead, but the fact was so ; knowledge of the fact, is derived aliunde.
No answer that one defendan. ’
The execution may be said to be irregular and void ; for ■ it directs to levy on the goods and chattels' of a person not in being, and for want thereof, to cause the amount to be made of his lands, which may have been held by persons strangers to the judgment, and ignorant of the proceedings. This doctrine is fully recognized in Morton v. the terve-tenants of Croghan, (20 John. 106,) where it is held that a judgment creditor, who proceeds to enforce his lien ,pn real estate, if it become necessary for that purpose, to revive the judgment, must make all the terre-tenants parties to the scire facias.
Independent of adjudged cases, on the distinction of void and voidable process, it seems to me that to sanction such & proceeding, would be an invasion of one of the great principles upon which our security depends under a government of laws; that no person shall be put out of his freehold, or lose his goods and chattels, unless he be duly brought to answer, or be forejudged of the same, by due course of law. (1 R. L. 47.). It is undoubtedly in support of this principle that the cases hold a decided and unequivocal language; not that "in case of the death of a defendant after judgment, the plaintiff may or must issue a scire facias, but as in 2 Saund. 6, n. 1, he cannot have execution against the defendant without a scire facias. So also in 6 Bac. 112, tit. scire facias, it is laid down, that one who is no party to the record or judgment, shall have no writ of execution, but a sci.fa.for the alteration of the person altereih the process.
It is no answer to say, that one of the defendants was living, who might avoid the execution, and has, in fact, procured it to be set aside. The objection is, that the law forbade the issuing it, so as to affect the representatives of the deceased defendant. The survivor did not represent their rights, nor could he by any act, as co-defendant, surrender them. Neither can ft be successfully contended, that this execution was merely voidable as to Benjamin Pelton ; because, if the doctrine [741] I have advanced be correct, it follows that the execution, in lot i, and not in part, is void. It is a settled and inflexible rule, that the execution, as issued, must be warranted by the judgment. (2 Tidd, 1029.) Now, if it be shown that this execution was, at least, void as it respected Richard JY. Pelton, it cannot be said to be warranted by the judgment. I am not aware of any qualification to the rule, by which process confessedly void in one material part, can be upheld and supported as valid for the residue.
Execution must be tested in lile time ..of defendant.
The statute (1 R. L. 504, s. 11,) is not in affirmance of common law, but gives a remedy, which did not exist previously.
If this judgment bad been against Richard JY. Pelton solely, it would not, I think, be urged, that after his death, an execution could, by authority of law, issue in his name, unless it be tested in his life time. (2 Tidd, 916. 7 D. & E. 20. 1 Bos. & P. 571. Vid. 1 Ves. 195.) As the charge upon the judgment does not survive as to the realty, it cannot alter the principle that he is a defendant with others.
The view I have taken is also supported by the act concerning judgments and executions, (1 vol. R. L. 504, sec. 11.) which gives a remedy to a purchaser of any lands or tenements upon any execution, who shall be evicted on account of any irregularity in the proceedings, or want of title in the person against whom such execution issued ; or by reareason of any prior incumbrance. This section is not in affirmance of the common law, but gives a remedy which did not exist previously.
In 8 Coke, 192, (Manning's case,) before referred to, it is expressly laid down as one of the reasons why the sale of a term sold under a fieri facias shall not he avoided, though the judgment be afterwards reversed, that the vendee would lose his term and money also. If, then, the purchaser would be without remedy at the common law, in the event that the sale became void on a reversal for error, it seems to me he would be equally so, where the proceedings are set aside for irregularity. The statute, then, came in aid of the common law, and provided a remedy not existing before. But the statute does not provide for cases where judgment is reversed for error, evidently, because the purchaser was already protected. It does provide for the case where the purchaser shall be evicted, on account of any irregularity in the [742] proceedings, thereby adopting the distinction I have en« deavoured to establish, and recognizing the principle that a-purchaser will be affected by it, that he may be evicted on that ground, and, therefore, his money ought to be restored.
The word irregularity in statute, refers to void, not voidable proceedings.
Were the articles rescinded?
What the bill calls for on this head.
And what is answered.
I have shewn, that where an execution is set aside for irregularity, without further explanation, the term implies void, not voidable process. When the same term is made use of .in the statute, and that statute is remedial, it must be understood in the same sense. This construction, which I consider sound, does not reach the case of a sale under voidable process. The reason is obvious. The purchaser in that case could not be disturbed; the common law protected him., A statute provision became unnecessary.
On the whole, I feel myself bound to say, that although it is not practicable to lay down a general rule, applicable to all cases, drawing the partition line between writs void and voidable, it seems to me clear, that on principle and authority, this execution was void, and if so, no title was acquired by the appellant. To decree a conveyance, would be a nugatory act, and consequently, the respondent’s bill, on this ground, ought to be dismissed.
But admitting I am not correct in this conclusion, a further question presents itself, whether the articles of agreement were'rescinded by the consent of the respondent. Bet fore I attempt to analyze the testimony, it will be useful to inquire how far the answer of the appellant is to be considered evidence.
The bill calls on the appellant to answer the matters ah leged, as to making the contract, how it was disposed of, when, where and how the appellant got possession of the agreement, and under what pretences.
The appellant answers, that the respondent voluntarily concluded to abandon his possession of the premises, and all claim or title thereto, stating that he would have nothing further to do with it, and expressly authorized the appellant to make any arrangement with Phinehas Bennet and Phinchas Bennet, jun. the appellant thought proper, with respect to the premises; that afterwards, on or about the 27Z/t December, 1816, the complainant came to the village of Ithica, [743] áiid by consent .of all the parties, the articles of agreement between the defendant and the Bennets were taken up and rescinded ; the seals being torn off by the express consent and agreement, and in the presence of the complainant.
Answer Ie«gal evidence» English authorities.
American authorities.
Ten Eyek v. Hart, M. S. 1817.
This part of the answer is legal and competent evidence, because it is responsive to the bill, and within the discovery sought. There is undoubtedly some apparent contradiction in the English authorities on this point.
In Gilberts Law of Evidence, 45, before Lord Cowper, the bill was by creditors for ah account, and it was ruled, that when the answer was put in issue, what was confessed need not be proved, but the defendant must make out by proof, what was insisted upon by way of avoidance. But in 1 Vernon, 136, 208, it was decided, that if a man, by answer, swear that what he received as a servant, he paid over to his master, he shall not be put to answer again.
Whatever may be the rule in the English Courts, this question is at rest with us. In Clason v. Morris, (10 John. 542,) a replication had been filed to the answer, and witnesses examined. The material inquiry was, whether the ■answer had been disproved. Thompson, Justice, in his opinion, observes, “ the respondents having thought fit tó ■make the appellant a witness, they are bound by what he discloses, unless it is satisfactorily disproved. The answer is not to be discredited, or any presumption indulged against it on account of its being the answer of a party interested.” This rule applies to every case where the answer is within the discovery sought. The same principle is recognized in Field v. Holland, (6 Cranch, 24.) In the bill, the complainant called on the defendant to answer, whether certain judgments were discharged. Having answered as to this fact, which was material for the defendant, Chief Justice Marshall observes, “ the plaintiffs cannot now be allowed to-say that this answer is no testimony.” But the question has been decided in this Court, in 1817, in the case of Ten Eyck and others v. Hart. How far the answer was evidence, was one question before the Chancellor. On the appeal, it was argued and decided here. On the debit side of the defendant’s account, some of the items were not supported [744] by proof, unless the answer was evidence. It was argued that it was evidenc e, because it was responsive to the bilb The defendant was interrogated, and required to set forth an account of all just debts owing by the intestate, and how and in what manner his estate had been applied or disposed of. By the 4th section of the decree in this Court, it was among other things decided, that the charges contained on the debit side of the account be allowed, unless disproved or falsified by the respondent; A division of the Court was taken on this section. This decision is in point," as to the case under consideration ; for the answer of the appellant here is not more than a fair compliance with the interrogatory in the bill.