Phillips v. Shiffer , 64 Barb. 548 ( 1873 )

By the Court.^*—Davis, J.

[After stating above facts.]—Nearly forty years had elapsed between the delivery of the JL fa. to the sheriff and his sale thereunder, and the making of the contract between the parties to this suit; and the deed of the sheriff was executed in May, 1835, since when the plaintiff and they from whom he derives title have enjoyed undisturbed ownership, having clear record title except as affected by the defects alleged by the defendant.

The facts of the case are to be looked at through the atmosphere with which the lapse of nearly forty years surrounds them.

There was no dispute as to the recovery of the judgment in the superior court, but it is insisted that the execution, by virtue of which the sale took place, was not proved.

Conceding that the recitals of the sheriff’s deed are not sufficient, proof on the subject (Anderson v. James, 4 Robt., 35; Jackson v. Shepard, 7 Cow., 88), yet here was direct and affirmative proof by the sheriff that the recited writ was issued and delivered to him, and that he made the sales under it; and this proof was corroborated by the production of the official entries of the delivery of the execution made contemporaneously in the register of the sheriff.

We do not think this proof falls within the cases cited.

The neglect of the sheriff to return the execution, and its probable loss through the carelessness of his deputy, ought not to be held to affect rights acquired by purchasers at a sale regularly made under the writ.

This would be to put titles acquired at sheriff’s sales at the mercy of the subsequent neglect of that officer.

We think the first objection of the defendant was ■ not well taken.

The second and third objections both relate to the assignments of the certificates of sale, and the failure to properly prove and file them.

All the assignments except the last were made before the passage of the act of 1835.

They were valid instruments when made, and undoubtedly carried to the assignees all the rights acquired or evidenced by the certificates of sale.

The act of 1835 did not in any wise invalidate those instruments; and the last clause of the second section of that act' expressly provided that it should not be necessary to have acknowledged the execution ‘ of any assignments theretofore made.

The act of 1835 took effect on May 22, and as the sheriff s deed bears date on May 28, it is more than probable that the provisions of the act had not come to the notice of the parties.

However this may be, the act of the sheriff in executing the deed, reciting'the several assignments and recognizing the rights of Mrs. Wiswall under them, must be deemed a waiver on his part of his right to insist on the proof and filing of those instruments.

The principal object of the statute of 1835 was the protection of sheriffs by creating a statutory mode by evidencing the claims of assignees, without which a sheriff could not be compelled to convey to such assignee.

The sheriff could waive the protection of the statute, and if he did so, and conveyed to an actual assignee, the title of his grantee would not be affected by the omission to prove and file the assignment of the certificate (Wood v. Morehouse, 45 N. Y., 368; 1 Lans., 405; Bank of Vergennes v. Warner, 7 Hill, 91; Canfield v. Westcott, 5 Cow., 269; Chautauque Bank v. Risley, 4 Den., 484; People v. Ransom, Id., 147). We do not consder the case of People v. Ransom (2 Comst., 490), to hold any different rule.

That case substantially holds that a sheriff cannot be compelled to. convey without compliance on the part of any assignee with the statute of 1835, but it does not decide that a conveyance by the sheriff without such compliance would not convey a good title.

We are of opinion that the substantial contents of the several asssignments were sufficiently and properly proved by the recitals of the sheriff’s deed (Wood v. Morehouse, 45 N. Y., 368), and that their execution and existence at and before the execution of the deed, and their loss or destruction, were satisfactorily shown by the sheriff.

The findings of the réfere'e were therefore sustained by competent evidence.

The judgment should be affirmed, with costs.

* Present, Ingraham, P. J., and Davis, J.