Shottenkirk and others against Wheeler and others.
Nov. 12 and 14, 1817, and Jan. 6, 1818
Adjudgment creditor, other than the mortgagee, may sell the equity of redemption on execution.
Though a judgmental law may be impeached, in this court, for fraud; yet this court will never interfere with a judgment at law on the ground of irregularity; but the record of the judgment, and execution, and title under them, are a conclusive bar in equity. It belongs to the court of law, exclusively, to inquire into the regularity of its judgment.
It seems that a court of law will not set aside a judgment, after a lapse of 20 years, on the ground of irregularity.
THE amended bill, filed the I6th of August, 1814, stated, among other things, that Abraham Skinner, on the 8th of May, 1783, executed a mortgage of a farm, of which he was then seized, in Amenia, in Dutchess county, to Joel Harvey, jun. to secure the payment of certain bonds. Part of the money was paid by A. S., in his life time, and he continued in possession of the premises until the 5th of February, 1787, when he died, leaving six infant children, from one to ten,years of age. (lev S., a son, died intestate, in 1805, leaving three children, plaintiffs. Joel, another son, died intestate, and without issue, in 1811, and Thomas was a lunatic, and his committee, with the three daughters, and their husbands, were, also, plaintiffs. The heirs of A. S. remained in possession of the premises, after his death, until 1789, during which time, Persis S., Ms widow, had the management of the estate, as guardian to her children. On the 8th of July, 1789, she, as widow and guardian, released 53 acres, part of the mortgaged premises, to Thomas Thompson, who took possession, and which has since been held under that release. Three of the infant children of A. S. continued to reside on the residue of the mortgaged premises until 1799. The widow, who married W. Bishop, the 10th of September, 1789, con *276tinued to reside on the residue of the premises, until 1799, when Noah Wheeler took possession under claim of title. Six of the defendants have held possession under the.persons who so entered, and have received the rents and profits, stated to be of the value of 500 dollars per annum, since 1799, to the present time. The bill charged, that they, committed waste on the premises. J. Harvey, the mortgagee, died about the 10th of December, 1795, and his executors were made defendants'. Thomas Thompson died in 1795, intestate, and his administrators were,; also, defendants.
The bill further stated,- that the defendants denied the right of the plaintiffs to redeem, asserting their title, &c. Prayer, that the defendants may account for the rents and profits, apd waste committed, and that the plaintiffs may be let in to redeem, &c.
The answer of the defendants stated, that Joel Harvey gave one. of the bonds of A. Skinner, to his son m law Thomas Thompson ; and to secure the payment of it, A. S.. o,n the 8th of March, 1786, gave to T. T. a judgment bond for 226 pounds, payable the 1st of October. The plaintiffs alleged that A. S, was insane, when, he gave the judgment bond; but this was denied by the answer. On the 11th of April, 1787, judgment was entered up on the bond, for 452 pounds debt, and 11. 3s. 6d. costs, on which a fi. fq. was issued, returnable in April term following, which was retured by the sheriff indorsed, “I have levied to the value of 5 pounds, and not sold for want of buyers; which execution, the defendants stated, was ac-tpally levied on the mortgaged premises. On the 28th of April, 1787, a writ of venditioni exponas was issued, reciting the ji. fa., return, &c. which writ-was made returnable on the last Tuesday of July: That the sheriff, for want of goods and chattels, sold all the right of A. Skinner in the mortgaged premises, to 208 acres and three quarters, or 23_ pounds, and to 54 acres, for 71 pounds; and on the *2773d of December, 1787, the sheriff executed a deed to T. T., set forth in the answer, and which recited, the fi. fa., its return, &c. the venditioni exponas, Sec. by virtue of which he sold the land on the 20th of July to T. T. as the highest bidder; this deed also recited the mortgage by ,fi. S. to Harvey, and that he had afterwards released the 54 acres to JL. S. The defendants insisted, that by the sheriff’s sale, the equity of redemption passed to T. T., and that whether the judgment and execution were irregular or erroneous, were questions of law. exclusively, and to be determined by the supreme court, in which the judgment was rendered. That the plaintiffs had applied to the supreme court to set aside the judgment and execution for irregularity, on the grounds stated in their bill, which was refused. The defendants disclaimed all title to 53 acres; and they stated further, that, in 1795, the executors of Joel Harvey, jun., filed a bill in this court against Thomas Thomson to foreclose the equity of redemption ; and that prior to the 28th of July, 1795, a decree was passed for the sale of the mortaged premises, except the 53 acres, and that on the 28th of July, 1795, a venditioni exponas issued to the sheriff, to sell the mortgaged premises, which were sold on the 15th of October, 1795, at auction, for 100 pounds, except the 53 acres, to R. De Cantillon, to whom a deed was executed, which was set forth in the answer. That Harvey assigned one of the bonds to E. D. defendant, another to R. De Cantillon, and another to James S. Smith, who, on the 15th of September, 1796, purchased the widow’s right of dower, and all other right under T. Thompson; and on the 17th of June, 1797, they sold 209 acres to the defendant, JV*. Wheeler, for 2,500 dollars, who occupied the same untill July,
1813, when he conveyed the same to his three sons, defendants.
John Lloyd, a witness, aged 81 years, testified, that he was the deputy sheriff, who received the execution, and the *278venditioni 'exponas; that he did not sell the real estate of A. S., there being goods enough to satisfy the execution.
January 6, 1818.
It appeared that A. S., died in February, 1787, and that judgment was not entered on the bond and warrant, until ' the 12th of April following; and the plaintiff insisted that the judgment was therefore void, and no lien on the equity of redemption : that the execution was not pursuant to the form prescribed by the 7th section of the act of the 19th of March, 1787, and was void, and gave the sheriff no authority to sell: that the plaintiff did not levy on the premises, before the return day of the execution, nor did he return that he had levied on any lands, &c. That no such writ of Ji. fa. had issued as was mentioned in the venditioni exponas, and that the vend. exp. was issued and tested after the death of A. S., and did not conform to the statute; and that for these reasons the sale was void.
The cause was -brought to a hearing on the 13th of JVbvember last.
Cady, for the plaintiff.
P. Ruggles, contra.
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 *279oourt 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» *280regularity 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 *281the 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,