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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 441 The defendant claims title to the three lots on Wyckoff street, in the city of Brooklyn, under a sheriff's deed given upon a sale by virtue of an execution issued upon the judgment of Ann Morrison against Bryson. The plaintiff claims that that judgment was paid before the sale, and hence that the defendant took no title by his deed. Upon this issue, as to payment of the judgment, the jury has, upon two successive trials, given the plaintiff a verdict, and the General Term has refused to set the last verdict aside as against the evidence.

There is some evidence tending to show that the judgment was paid in the fall of 1852. This evidence is not as clear and conclusive as it might be, as most of the persons concerned in the transaction were, at the time of the trial, dead. *Page 442

Ann Morrison recovered her judgment December 28, 1850, some months after the trust deed had been given by Bryson to Culbert, and she claimed that the deed was fraudulent and void as to her, and soon commenced proceedings to collect her judgment. She commenced an action against Culbert and Bryson and his children to set aside the trust deed as fraudulent and void as to her judgment, and upon the issue joined in that action, she had a verdict September 21, 1852; but judgment was not entered upon this verdict until January 29, 1853. After this verdict there was ample real estate that could be readily reached to satisfy this judgment, and it is quite probable that the persons interested therein paid the judgment rather than to permit a sale thereof. Upon the theory that the judgment remained unpaid, why were the proceedings to collect the judgment, which had been prosecuted so vigorously and successfully, suspended for more than three years before the sale of the land under the execution in 1856?

The evidence of the witnesses Loomis and Cogswell tends very thoroughly to show that the judgment was paid in the fall of 1852 by one of the attorneys for Bryson to the attorney of Ann Morrison, and hence, the judge at the trial committed no error in refusing to dismiss the complaint and in submitting the case to the jury. While there were some quite significant facts and circumstances inconsistent with the claim that the judgment was paid before the sale, yet there were circumstances and some evidence for the jury upon the question of payment, and it was their exclusive province to determine that question.

The learned counsel for the appellant claimed, on the argument before us, that the judgment of Ann Morrison, by which the trust deed was declared void as to her, conclusively established that the judgment against Bryson remained unpaid on the 27th of January, 1853, when the former judgment was entered. The litigation in that case ended with the rendition of the verdict on the 21st day of September, 1852; and as that verdict was based upon an unpaid judgment in favor of the plaintiff therein, the judgment in that action *Page 443 established the fact that at that date the judgment for the money was unpaid. The adjudication dates from that time, and the entry of judgment afterward was a mere formal proceeding to carry that adjudication into effect. The judgment may have been entered by the clerk upon his own motion or by the attorney for the plaintiff therein, ex parte. Suppose the entry of judgment had been delayed for years, would it, when entered, after a great lapse of time, be conclusive evidence that the judgment for the money remained unpaid? Such an effect cannot be given to it. Upon the question of payment of the money judgment, it simply estops the parties from denying that it was a valid subsisting judgment at the time of the rendition of this verdict.

On the fourth of July, 1857, Culbert, the trustee, commenced an action of ejectment to recover these lots against this defendant. That action was put at issue and noticed for trial at the circuit. Culbert was defaulted and his complaint dismissed. He moved to open the default, and the motion was granted, and an order was made referring the cause to a referee. From the order of reference Culbert appealed to the General Term, and there the action was discontinued by Culbert, he signing the following stipulation:

"I consent that this action be, and the same is hereby discontinued and dismissed, and I hereby direct E. Daly, who claims to be my attorney, to close all proceedings herein; and in consideration of the consent of the defendant that the suit be discontinued, I hereby release him from all claims and demands of every description relating to the property mentioned in the complaint.

"Dated November 23, 1857.

"WILLIAM CULBERT." [L.S.]

Upon the presentation of this stipulation to the General Term, the appeal in that cause was stricken from the calendar, and the complaint therein was dismissed. Upon the trial of this action defendant offered to prove this stipulation; but plaintiff objected upon the ground that Culbert had no *Page 444 authority to give any such paper, and that it was not within the issues in the cause. The court sustained the objection, and this ruling is now alleged for error on the part of the appellant.

The ruling was clearly correct. This stipulation could not operate as a release or conveyance of Culbert's title to the land, as it would be a conveyance in violation of the trusts under which he held the title, and therefore absolutely void under the provisions of the statute (1 R.S., 731, § 65), which provides that "when the trust shall be expressed in the instrument creating the estate, every sale, conveyance or other act of the trustees in contravention of the trust shall be absolutely void."

Besides, the trust deed expressly provides that the trustee might "release" or "sell" the trust estate only under the control and direction of the Supreme Court, and there can be no pretence that the Supreme Court either directed or sanctioned the release or sale in this case. The court at General Term, upon the presentation of the stipulation, ordered the cause stricken from the calendar and the complaint to be dismissed. The stipulation to discontinue, which the trustees were competent to sign, was carried into effect, and it does not appear that the court was informed that Culbert was trustee or that it was in any way called upon to adjudicate in reference to a release or sale of any of the trust estate.

The appellant's counsel makes a point that the defendant was in possession of the premises as mortgagee, if not the owner, and was therefore entitled to retain it as against the plaintiff. It is a sufficient answer to this claim that it was not set up in the answer, nor in any way alluded to upon the trial; and it does not even appear that he held any mortgage upon these lots.

There are no other questions in the case which I deem of sufficient importance to notice. I have reached the conclusion that the judgment should be affirmed, with costs.

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