Summary
In Leland v. Cameron, 31 N.Y. 115, the entry by an attorney in his register, in the proceedings in the action, of the issuing of an execution which could not be found, was held, the attorney being dead, to be competent evidence of the fact that the execution was issued.
Summary of this case from Lassone v. RailroadOpinion
January Term, 1865
Z.A. Leland, for appellant.
R.B. Van Valkenburgh, for respondent.
The case contains no finding of facts, and by repeated decisions of this court the appeal cannot be heard. ( 16 N.Y., 610, 613, 617; 3 Kern., 344; 20 N.Y.)
If, however, the court should deem it proper to overlook this error in practice, I will briefly assign the reasons which induce me to vote for the affirmance of the judgment. It must be assumed, in the absence of any objection on the trial, by the defendant, that Helm had title to the lands in question at the time of the recovery of the judgment against him by Dugald Cameron; and I will further assume that the title was in fee. That judgment is concededly regular, and was therefore a valid lien on all the lands of said Helm. It was proved that the sheriff sold the premises in controversy; that they were bid in by said Cameron, and conveyed by the sheriff to him, by deed, dated the 3d of March, 1818, which was duly recorded on the 2d of April of the same year. To the validity of this conveyance two objections are taken: 1st. That it was not proved that an execution was issued in the form required by law; and, 2d. That the premises sold consisted of several lots or tracts, and they were all sold as one parcel, whereas they should have been sold separately.
In regard to the first objection, it was shown that search had been made in the clerk's office for the execution, and none could be found; that the person then sheriff had had his house burned — removed next, and died, and that on inquiry of the members of the family, it could not be found. This was sufficient evidence of loss to admit secondary evidence of its contents. But it was necessary first to show that an execution was issued to the sheriff. The only evidence on that subject was the entry of the attorney in his register. The attorney was dead, and hence his entries of any fact which may be thus proved might be received in evidence.
The rule of evidence applicable to entries made by deceased persons, is thus stated in 1 C. H., note 675: that all entries or memoranda made in their course of business or duty by any one who would, at the time, have been a competent witness of the fact which he registers, are competent. In these are included entries of notaries and bank receivers, as to the demand and protest of notes ( 15 Mass., 383; 7 Wend., 160), merchants' clerks, surveyors and engineers, and commercial agents. (See also 1 Greenl. Ev., §§ 115-17.) That it is the practice of lawyers to keep entries of the proceedings in a cause, is as well known as that merchants keep books in which are entered goods sold on credit. It is as much the duty of the lawyer to keep a record of such proceedings, as of the notary of the time of making demand of payment of a bill or note, or of the time and manner of serving notice of non-payment.
I entertain no doubt but that the entry of the issuing of execution was properly received, and that, being received, it proved the issuing of an execution to the sheriff at the time mentioned in the entry. In arriving at the contents of the execution it must be borne in mind that its contents were prescribed either by statute or by the practice of the courts, and, with the exception of a description of the judgment, all executions against property were then and still are alike. The person who issued it was a lawyer, conversant with such instruments, and the sheriff to whom it was delivered knew what such process must contain in order to authorize him to sell. In view of these facts, and after a lapse of over thirty years, we must assume that the execution was in due form, containing all such directions as the statute or practice required such process to contain.
As to the alleged irregularity in the sale, it seems to me there is no evidence in the case on which to rest it. It was the duty of the officer to sell in parcels, and the presumption is that he has done it. That presumption is not overcome or affected by the recital in the deed that the whole premises were bid off for a gross sum. The sale may, consistently with the recital, have been in parcels, and we must presume that it was.
I think the sale by the sheriff was valid, and that Dugald Cameron acquired a valid title thereto as against the judgment debtor, Helm.
It was in 1826 that the plaintiff acquired the title under which he now claims (except so far as the will forms an element of it which became operative in the spring of 1827, on the death of said Helm). At that time the title of Cameron was, as I have shown, perfect as against Helm, and of course there was nothing to pass to the plaintiff and Skinner.
To meet and overcome this difficulty, the plaintiff proved three letters from Dugald Cameron to Helm, one dated after the recovery of the above mentioned judgment and before the sale, and one a few days after the sale, and the other in 1824, some six years after the sale, for the purpose of proving that said Cameron held said lands in trust for said Helm at the time of the conveyance by Helm to plaintiff and Skinner. I fully concur with the learned judge who tried the cause, that these letters are not sufficient evidence to establish a trust. Although no particular form of words is necessary to create a trust, it is necessary that the intent thus to hold should be clearly manifested.
In this case we have a valid judgment, which is conclusive evidence of an indebtedness from Helm to Cameron; that judgment enforced to a sale and a purchase by the creditors, without any evidence of even a negotiation between the parties in regard to the reservation of any interest in the debtor. The letters relied on as evidence of a trust, are the declarations of a kind and generous creditor to his debtor, of his willingness to extend to him every indulgence in his power, that does not destroy his security for his debt. I cannot believe that either Cameron or Helm supposed that a trust was created by these letters, or even intended to be created.
If the plaintiff fails in establishing a trust, he then insists that the letters are evidence that the judgment was in the nature of a mortgage, and that such mortgage has been paid.
The judgment was not taken as security for a debt, an essential requisite to convert a deed or other instrument or conveyance into a mortgage. (See cases collected in Abbott's Digest, title Mortgage, § 7, c.) The debt was merged in the judgment. The deed was taken in pursuance of the sale, not as security for the judgment or any part of it, but in payment to the amount of the bid.
The letters show a willingness to relinquish the title on being paid the amount to which he deemed himself entitled, but they do not show that he either took or held the title by way of security for any subsisting indebtedness.
The letter of the 6th July, 1824, is no evidence that the amount bid at the sheriff's sale had been paid. It may be evidence that the balance of the judgment not satisfied by that sale has been paid. The sale and conveyance by the sheriff operated as payment of so much of the judgment as Cameron bid at that sale. That part of the judgment being satisfied, nothing short of evidence of a vacation of the sheriff's deed and sale could revive that part of the debt.
In no aspect of the case is the plaintiff entitled to recover, and the judgment of the Special Term and of the General Term were right, and must be affirmed.
The action was prosecuted by the plaintiff for his own benefit, and he was liable for costs. To release a plaintiff from such liability, under section 317 of the Code, he should not leave the character in which he acted open to doubt or cavil. The court below had the right to treat him as suing in his own right, and therefore to charge him with costs. The order of the General Term must be affirmed with costs.
All the judges concur in the affirmance of the judgment; WRIGHT, J., on the ground of want of statement of fact. DAVIES, INGRAHAM, HOGEBOOM, and JOHNSON, JJ., and DENIO, Ch. J., affirm on both grounds. SELDEN, J., did not vote.
Judgment affirmed.