Roswell W. Driggs, Appellant, v. John Simson, impleaded, etc., Respondent

Roswell W. Driggs, Appellant, v. John Simson, impleaded, etc., Respondent. (Argued March 29, 1875; decided April 6, 1875.) This was an action to foreclose a mortgage executed by one Amos W. Broughton to Whitman Jacobs, in 1857. In May 1859 Jacobs brought an action on the bond, to secure which the mortgage was given, and obtained a judgment thereon. This he assigned to plaintiff in November, 1859. In April, 1860, an execution was issued on the judgment, and Broughton’s interest in certain other real estate was sold thereunder, being bid off by one Uriel Driggs, father of plaintiff, for sufficient to pay the amount of the execution and costs. Plaintiff’s attorney, in that action, receipted the execution upon the back thereof, and the same was returned by the sheriff fully satisfied. After the expiration of the time for redemption, the sheriff executed a deed of the premises sold to the purchaser. The defendant Simson subsequently purchased the mortgaged premises. In October, 1870, plaintiff procured an assignment of the bond and mortgage. After the death of Broughton, in 1872, upon motion in said action, on notice to Broughton’s executor, an order was granted directing the sheriff to cancel the receipt and his return of satisfaction, and to make a new return of nulla Iona, which was accordingly done. The evidence tended to show that Uriel Driggs did not, in fact, pay to the sheriff the amount of his bid, but the execution was receipted and returned with jilaintiff’s consent. Subsequently, one Walker claimed title to the lands sold. Plaintiff offered in evidence the record of a judgment in an action brought by Walker against Uriel Driggs, establishing the title of the former to said lands, and directing a conveyance thereof; and also offered to show that in compliance therewith the latter did convey the lands. This was objected to and excluded. The court, at Special Term, found that the judgment was paid by the sale and conveyance by the sheriff. Held, that the evidence justified the finding; that the transaction operated as a satisfaction of the judgment, although plaintiff gave credit and the purchaser never performed his obligation; that the j udgment in Walker v. JDriggs was not competent evidence as between the parties hereto, and was properly excluded (.Duchess of Kingston's Gasa, 20 State Trials, 538; Campbell v. Hall, 16 N. Y., 575), and that there was nothing showing that Brougton had no interest in the lands sold, so as to found a claim that the sale was a nullity. N. Morey for the appellant. Benj. H. Williams for the respondent. [MAJORITY — Andrews, J.,] Andrews, J., reads for affirmance. All concur. Judgment affirmed.