Thomas McIntyre, Respondent, v. Philip Sanford et al., Appellants

Thomas McIntyre, Respondent, v. Philip Sanford et al., Appellants. The provision of the Code of Civil Procedure (§ 1440, as amended by § 3,' chap. 681, Laws of 1881), providing that if the title of one claiming under a sheriff’s deed land sold on execution is adjudged void in an action brought by the j udgment debtor, the j udgment shall have no force unless the plaintiff shall pay, within the time specified, the amount paid on the sale, with interest, costs and expenses, etc., has no application in an action wherein relief is sought against a fraudulent act of such grantee. (Argued May 31, 1882 ; decided June 30, 1882.) This action was brought to set aside a sheriff’s sale of bonds under an execution on the ground of fraud, irregularity and abuse of process by the sheriff in making the sale. The allegations of fraudulent collusion between the purchaser and the sheriff, and of abuse of process on the part of the latter were^ sustained by the findings of the court. The prominent questions argued upon this appeal were as to the sufficiency of the evidence to sustain the finding. It was held sufficient by the court. The appellant’s counsel also claimed that the judgment could only be affirmed upon the conditions specified in section 1440 of the Code of Civil Procedure, as amended by section 2, chapter 681, Laws of 1881. Held as above. The court, however, held that as the judgment against plaintiff had been paid and satisfied, and as this was an equitable action, plaintiff should refund to the purchaser the amount of the judgment with interest, and that the judgment should be so modified. William A. Abbott for appellants. (Jhanmoey S. Truax for respondent. [MAJORITY — Miller, J.,] Miller, J., reads for modification of judgment, and for affirmance as modified. All concur, except Tracy, J., absent. Judgment affirmed.