concurrence">Birdseye, J.

—I concur fully with the views expressed by the learned judge who decided this case at the special term, upon the points raised before him. But upon the argument 'before us, several other questions have been discussed, which will be briefly examined.

It is true that on a reference as to surplus moneys, under the forty-eighth rule of this court, the referee can only take into consideration absolute liens on the estate,—those which subject it to be sold, as distinguished from any equitable claims not matured into liens. (King a. West, 10 How. Pr., 333.) But the referee, when he finds a lien regular and valid upon the record, has no right to go behind it, to inquire whether it is irregular, or fraudulent, or inequitable. He is to inquire, simply, whether a lien exists: not whether it ought to exist. That inquiry is reserved to the court, and can be made only on notice, and in such manner as to present the objection to the lien distinctly, and so that each party may be heard, and the decision may be reviewed. Whether such investigation be had *148on motion, or more formally by suit, with pleadings presenting plainly the point to be litigated, it will be wholly distinct from the examination which would be' had, if the claims of the appellants are sustained.1 For the referee, .under the forty-eighth rule, proceeds without pleadings stating the rights or claims of the parties; and without notice, as between the conflicting claimants, of the nature of the claims • they intend to assert. He has no power to conduct the investigation of any such matter. He is not a referee undér the Code, and possesses none of the enlarged powers given to. such a referee, by section 272 of the Code. He is only to fulfil the duties prescribed for him' by rule forty-eight. He has done this, when he has ascertained and reported the amount due to the claimant, or any other person, which is a lien upon the surplus moneys, and has ascertained the priorities of the several liens thereon.

Hor when he has made his report,, and a motion is made for its confirmation and for distribution of the surplus, acbording to its findings, can the justice or regularity of the liens be examined, upon the evidence taken before the referee. The court would, perhaps, have the power to make an order in regard to many of the usual objections to such liens, on such a motion. But I think we should not do so, collaterally; but only upon applications made directly for that purpose, on a sufficient notice, in which the defects, irregularities, or frauds shall be specifically pointed out.

These views will dispose of most of the objections discussed on the appeal, other than those which were rightly disposed of in the court below. Among these, is the objection that the lands, though they consisted of distinct parcels, were sold together instead of in single lots, which is a mere irregularity. (See Lambertson a. Marvin, 8 Barb., 9; Griswold a. Fowler, 4 Abbotts’ Pr., 238). Also, the objection to the regularity of the adjournment of the sale, on the 24th of December, 1856 ; the alleged legal, if not actual fraud in the sale, at the time, in the manner and for the price at which the sheriff sold on the executions; the alleged, concealment of the withdrawal of the plaintiff’s executions ; the supposed assurances of the sheriff, on the day of sale, that the sale would be adjourned; his failure to adjourn, to avoid a sacrifice of the property; and the supposed withdrawal of the execution of Fuller, Dayton & Co., by *149the direction given to the sheriff by their attorney, on the 6th of March, 1857, that if no one was present at the sale on behalf of Fuller, Dayton & Co., they would rely upon the surplus moneys.

Each of these objections referred either to the regularity of proceedings in suits separate and distinct from that in which the reference was had, or to the good or ill faith of the parties to those suits, or of the officers who were executing the process of the court therein. To allow such matters to be inquired into, either before the referee, or on the motion to confirm his report, upon evidence offered before him, would subvert the established practice of the court, run counter to all settled principles of law, and expose to great danger the rights of all claimants to such funds.

The only remaining question arises on the following facts.

The sheriff’s advertisement of sale was first published on the 19th day of June, 1856 ; the sale being fixed for the 12th day of August, then next. The notice stated that the sheriff, by virtue of sundry executions, to him directed and delivered, against the goods and chattels, lands and tenements of Orville Dakin, would expose for sale the lands described, &c. At the time of first publishing this notice, the sheriff held a large number of executions against Dakin, including, among them, one on the judgment of Fuller, Dayton & Co. But the executions on the three j udgments of the Messrs. Bird, now held by the appellants Willetts, were not delivered to the sheriff till the 23d day of July, 1856.

The sale was not had on the day appointed, but was adjourned from time to time till the 16th of March, 1857, when it took place. The sheriff’s certificate states that the sale was made upon the executions on the Bird judgments, as well as on many other executions. The adjournments were advertised, by reprinting the original notice of sale, with a notice of the postponement subjoined, and referring to the original notice for a statement of what the sale was to be. The notices of adjournment all state that “ the sale of the above described premises is postponed.” Some of the adjournments were for six weeks and more. The appellants now insist that “ the sale” thus had was the same sale first advertised; that it could only be made on the executions referred to and described in *150the original notice as those which had been, previously to that date, directed and delivered to the sheriff, and which were then held by him; that the adjournments only postponed the sale as thus limited; and that the attempt to sell on the executions subsequently received, was not merely irregular, but void, for want of a compliance with the statutory prerequisites to the sale of previous notice. .

If this be so, the lien of the Bird judgments was not devested from the lands and transferred to the purchaser at the sheriff’s sale; and the holders of these judgments are entitled to payment of them out of the surplus moneys,—the general lien of the judgments not being turned into a specific lien, in favor of the person bidding and receiving the sheriff’s certificate.

In selling property upon execution, the sheriff acts by virtue of a statutory power. If the power does not exist, no title passes. (11 N. Y. 61.) Every statute authority to devest the title of one without his consent, and transfer it to another, must be strictly pursued, or the title will not pass. (Olcott a. Robinson, 20 Barb., 148.)

In Mascraft a. Van Antwerp (3 Cow., 334), this court held that a sheriff who had advertised on but one execution, could not sell under that and another execution, by virtue of the same advertisement; though the other execution came to the sheriff’s hands on the same day as the first execution, and might have been included in the advertisement of the sale. (And see Brewster a. Cropsey, 4 How. Pr., 220.)

Beither of those cases is like the present, in all respects. In both of them, the advertisement of sale was in such form as wholly to exclude the subsequently received execution. And in neither of those cases did the sheriff assume to sell upon the second execution. In both cases the sale was without the consent of the defendant in the executions. Here, the advertisement of sale did, in fact, convey to the persons resorting to it for information, and inquiring of the sheriff upon what executions he designed to sell, notice that the sale would be made on the Bird executions. The sale was actually made on those executions. That fact is stated in the certificate. So far from such a sale being made without the consent of the appellants, the owners of those executions, the proof seems to me clear that they consented to it, and directed it to be made. The fact *151that it was so made was known to the parties forthwith after the .sale. They made a motion to set aside the sale, in the actions in which those executions were issued. But this defect in the notice of sale was not then pointed out. Nor was it discovered at the hearing before the referee as to the surplus moneys; nor on the motion at special term, to confirm the referee’s report. But it escapes all observation, until this argument at the general term.

It is true, that the sale, as first advertised, referred to certain specified executions, not including those issued on the Bird judgments. The same sale thus advertised, was adjourned from time to time, and was subsequently had. There is a clear logical inconsistency between the sale as made, and that which was advertised. The sale was made on executions not intended to be the foundation of it in the notice.

For this reason, my associate is of opinion that the sale was void as to the Bird executions. I shall concur with him in this conclusion, though not without some hesitation and reluctance. The statute does not require the execution or executions to be described in the advertisement of sale. It is sufficient, if it state that the sale is to be pursuant to an execution or executions. The time and place of holding this sale were publicly advertised previously, for six weeks, in the manner prescribed by the statute. For more than six months previous to the sale, the reference in the notice to the executions under which the sale was to be had, if considered as then first made, would have included those issued on the Bird judgments; although, speaking as of the date of its first publication, it would not have included them.

All the direct and positive requirements of the statute as to notice of the sale seem, therefore, to have been complied with. Nor is it easy to perceive what beneficial consequence to any person could have resulted, had the sheriff, after receiving the Bird executions, in July, 1856, either abandoned the first notice of sale, and published a new one in its place; or, without withdrawing that, inserted another notice of a sale to be had under such other executions as had been delivered to him since the publication of his previous advertisement of sale. Either course, it would seem, wguld merely have increased the costs of advertising to be paid out of the proceeds of the sale.

*152It may be that the rule contended for by the appellants will work some inconvenience, if made a general one. There will he no little force in the suggestion of counsel in Mascraft. a. Van Antwerp, that a debtor’s property may never be sold, if every execution, as it comes to hand, requires another advertisement.

But, in its application to this case, the rule will only relieve the appellants from a loss which, at the utmost, is the result of a mere inadvertence on their part. The sheriff’s sale was under the control of the senior judgment-creditors. It produced only $200; which was much less than the lands were really worth! The whole proceeds were swallowed up> by the expenses of salé and the first executions.’ It seems like a hardship that the lien of the appellants’ judgment should by such a sale be devested from the lands, and transferred to the- bidder at the sale, and they thus excluded from sharing in the proceeds of.property to which they were, in fact, entitled.

The order of the special term must be modified by declaring that the sheriff’s sale, under the executions upon the judgments in favor of Bird & Bird, was void as to those executions, and that such judgments are liens upon the surplus moneys, and shall be-paid in the .order of their priority, with $10 costs of motion.*

Emott, J., being of kin to parties interested, took no part in the decision of this case; and the same was, by consent, heard and decided by the other, two members of the court.

Citation profile

Relationships

How this case has been treated — in progress