Shottenkirk v. Wheeler , 3 Johns. Ch. 275 ( 1818 )

The Chancellor.

This is a bill filed by the heirs of Abraham Skinner, a mortgagor to redeem.

The defendants have raised several objections in bar of the demand.

The first, and perhaps the only objection which it will be requisite to consider, is the sale of the equity of redemption under a judgment and execution at law against Skinner, in favour of Thomas Thompson. The equity of redemption in the mortgaged premises was purchased at such sale by Thompson, and the premises are now held, partly under deeds from him, and partly under a foreclosure of the mortgage, and a sale under a decree of this oourt against Thompson, in whom the equity of redemption resided.

The defendants have given in evidence, the judgment in the Supreme Court, entered by confession, as of January term, 1787, against Skinner, in favour of Thompson, and a sheriff’s sale by execution, under that judgment, of all the mortgaged premises, in July, 1787, and a sheriff’s deed to Thompson, the purchaser, of the date of the 3d of December, 1787.

Unless the plaintiffs can avoid the force and effect of that judgment, execution, and sale, there is an end of their claim.

It is not to bé made a question, whether a judgment creditor, other than the mortgagee, may not sell the equity of redemption, on execution at law. The validity of such a sale has received a sanction in our courts, that is not now to be shaken. But the counsel for the plaintiffs has undertaken to show, that the judgment and the proceedings under it, were irregular and void. He has detected so much apparent irregularity, that, probably, he might have succeeded in an application to the Supreme Court, if he had made it in due time. The application was, indeed, made in February term, 1811, (7. Johns. Rep. 556.) upon affidavits, disclosing all the facts upon which the judgment and the proceedings under it are now assailed. I "remember the case; and I remember, also, the decision which, in the name of the court, I pronounced in the cause, “ that after the lapse of 20 years, no judicial proceeding whatever ought to be set aside for irregularity.”

I am now called upon, sitting in this court, to do the same thing, in effect, by disregarding the title under the judgment, and letting in the plaintiffs to redeem. It is now upwards of thirty years since that judgment was rendered, and sale made; and the force of the application is not only still further weakened by time, but is also made to a tribunal which has no jurisdiction over the question of ir» regularity in a judgment at law. The difficulty is truly stated in the answers of the defendants, that “whether j-jjg jU(3gme.nt and execution are irregular or erroneous, are questions exclusively at law.” As long as the judgment and execution remain in force, and are not set aside at law, they must be received in this court as of legal validity.

A judgment at law may be impeached in this courtfor fraud; but there is no case in which equity has ever undertaken to question a judgment for irregularity. The power of a court oflaw is always exercised, in such cases, in sound discretion; and the relief is frequently granted upon terms. This court cannot impose any such terms, or take any such cognizance of the case; and the title set up under the judgment and execution must be received here as a conclusive bar. The case of Baker v. Morgan, (2 Dow's Rep. 526.) decided in the English House of Lords, in 1814, lays down the same rule; and the doctrine coming from such masters of equity, as Lord Redesdale and Lord Eldon, is undoubtedly to be considered as correctly declared. If there had been any case warranting the interference of chancery with an irregular judgment, they would have known it. In that case, a recovery in ejectment was impeached after the lapse of 25 years, as null and void, on the ground of irregularity, and it was declared by them, that they had never heard before of equity trying a proceeding at law for irregularity. Lord Eldon said, “he could not imagine how, upon a bill filed in 1806, equity ought to trust itself to examine, as the ground of decree, whether a judgment in 1781, was regularly obtained.”

If the judgment and execution cannot be set aside or questioned, on the ground of irregularity, we surely cannot now go into parol proof, upon tiiis case, whether there was a sale of the mortgaged premises. We have the sheriff’s return to the venditioni exponas, that he had sold of the goods and chattels, lands and tenements, of Mraham Skinner, to 175Z. 3s., and that he had no more property in his bailiwick whereon he could levy the residue of the debt. That venditioni exponas recited, in form, and in extenso, the return endorsed on the previous fi. fa., by which it appears, that the sheriff had levied on the goods and chattels, lands and tenements, and that they remained unsold for want of buyers. We have, lastly, the sheriff’s deed of December, 1787, reciting the process of execution, the seizure or levy, the return, and the subsequent process and sale, on the 20th of July, 1787, of the mortgaged premises to Thomas Thompson. After such official and authoritative documents, can we now listen to the deposition of a former deputy of the sheriff, who is upwards of 80 years of age, and who undertakes to say from memory, that the goods and chattels of Skinner were sold under the execution and judgment, but not the lands and tenements. It would be impossible to suggest testimony more dangerous in itself, more contrary to rule, and more palpably inadmissible*

I am, accordingly of opinion, that the plaintiff’s bill be dismissed, with costs.

Bill dismissed,