87 N.Y. 92, Terrett v. Brooklyn Improvement Co.

Citation:87 N.Y. 92
Party Name:ELEANOR TERRETT, Respondent, v. THE BROOKLYN IMPROVEMENT COMPANY et al., Appellants.
Case Date:November 22, 1881
Court:New York Court of Appeals
 
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87 N.Y. 92

ELEANOR TERRETT, Respondent,

v.

THE BROOKLYN IMPROVEMENT COMPANY et al., Appellants.

New York Court of Appeal

November 22, 1881

         Argued October 24, 1881.

Page 93

         COUNSEL

         Winchester Britton for appellants. The agreement and conveyance of the 19th of July, 1855, did not operate as a payment of Cooke's judgments, because Cowenhoven wholly failed to remove the incumbrances on the property. ( Northrup v. Northrup, 6 Cow. 296.) Immediately after the expiration of the stipulated three months, Cooke was entitled to maintain an action against Cowenhoven for a breach of his covenant, in which the measure of damages would have been the amount of the outstanding incumbrances, and such action could have been maintained without Cooke being obliged to show any actual damage suffered by him, beyond the fact that the incumbrances remained unpaid. (Post v. Jackson, 17 Johns. 239; S. C., Id . 479; Northrup v. Northrup, 6 Cow. 296; Rockfeller v. Donelly, 8 Id . 623; Churchill v. Hunt, 3 Den. 321: Wright v. Whiting, 40 Barb. 235; Jarvis v. Snell, Id . 449; Cady v. Allen, 22 Id . 388; Seligman v. Dudley, 14 Hun, 187; Gilbert v. Wyman, 1 Comst. 530; Rector v. Higgins, 48 N.Y. 532; Bellows v. Freeborn, 63 Id . 383; Bank v. Biglin, 83 Id . 51.) It is sufficient to uphold the sale if any amount is due on

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the judgments, although it may be less than the sum for which the execution is issued. ( Peck v. Tiffany, 2 N.Y. 451.)By the purchase of the premises in question, expressly subject to Cooke's judgments (under which the defendants derive title), Crombie was equitably estopped from afterward claiming that the judgments were at that time paid, and the plaintiff, as Crombie's successor, is equally estopped. ( Brinsmade v. Hurst, 3 Duer, 206; Hurst v. Davis, 26 N.Y. 495.)

         D. P. Barnard for respondent. The vitality of the Cooke judgment was destroyed, so far as plaintiff's rights under the Terrett judgment were concerned, by the agreement of 19th July, 1855, between Cooke and Cowenhoven, and the execution sales under them were void. ( Marvin v. Vedder, 5 Cow. 671; Delavergne v. Everson, 1 Paige, 181; Truscott v. King, 2 Seld. 147; Fitzhugh v. Blake, 2 Cranch's C. C. 37; Dows v. Parker, N.Y. C. P., 4 N.Y. Leg. Obs. 384; Ford v. With-ridge, 9 Abb. 416; Mott v. Union Bk., 38 N.Y. 18; Caverly v. Nichols, 4 Johns. 189; Lansing v. Ratoon, 6 Id . 43; Watson v. Fuller, Id . 283; Van Wyck v. Montrose, 12 Id . 350.) If a judgment be satisfied there is no longer any power to sell, and a title cannot be acquired, even by a bona fide purchaser, without notice of the payment. (Wood v. Calvin, 2 Hill, 566; 15 Johns. 443; 1 Cow. 622, 711; 7 Johns. 535; 4 Wend. 474; 6 Id . 367; 8 Id . 676; 9 Mass. 138; 16 Id . 63.) A purchaser under a power purchases at his peril; if there was no subsisting power or authority to sell, no title is acquired. ( Lovett v. Cornwall, 6 Wend. 367; McGuinty v. Herrick, 5 Id . 241; Swan v. Saddlemire, 8 Id . 676; Carpenter v. Stilwell, 11 N.Y. 61; 2 Hill 566; 5 Id . 246,...

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