Doe, on the Demise of Maxwell, v. Moore, 4 Blackf. 445

Sullivan, J. This is an action of ejectment brought for the recovery of 120 acres of land lying in the county of Fountain. Plea, not guilty. On the trial in the Circuit Court, the plaintiff introduced in evidence a deed from the defendant, Charles L. Moore, to James Maxwell and John H. M’Cormic/c for the premises named in the plaintiff’s declaration, dated the 20th of August, 1833,—the record of a judgment of the Fountain Circuit Court in favour of one Sawyer against said James Maxwell and John H.

M’Cormick, rendered at the March term, 1834, for the sum of 325 dollars and 50 cents,—the execution issued on the judgment, and the levy and sale of the land described in the declaration indorsed thereon,—also a deed for the land from the sheriff of Fountain county to the lessor of the plaintiff, James A. Maxwell, who was the purchaser at the sale, duly acknowledged and dated the 25th of April, 1836. The defendant thereupon offered in evidence an agreement in writing under seal, between Moore and James Maxwell for himself and said John H.

M’Cormick by the name and description of James Maxwell Sf Co., dated the 18th of March, 1835, for the purpose of proving, among other things, an acknowledgment by Maxwell that the deed from Moore to Maxwell and M’Cormick had not been delivered to them by Moore, but was delivered at the time of its execution to one Bodley as an escrow,—that a settlement of accounts had since taken place between Moore and Maxwell Co.,—and that the deed was, by agreement between the parties, to be destroyed and considered of no effect.

To the introduction of that agreement as evidence, the plaintiff objected, but the Court overruled the objection and permitted the agreement to be read to the jury, to which the plaintiff excepted. It appeared in evidence that the James Maxwell who executed said agreement was another and different person from the lessor of the plaintiff, James A. Maxwell,—that the firm of James Maxwell Co. was composed of the said James Maxwell. and John H.

M’Cormick;—and it further appeared that said M’Cormick was not present when Maxwell and Moore entered into the agreement, nor was there any proof that M’Cormick authorised MaxioeTl to make it. • The jury on the foregoing testimony returned a verdict for the defendant, on which the Court entered judgment. From that judgment the plaintiff has appealed to this Court.

The instrument of writing, offered in evidence by the defendants to pi'ove that the deed from Moore to Maxwell and M’Cormick had been delivered to Bodley as an escrow, was entered into on the 11th of March, 1835, about one year after the rendition of the judgment against Maxwell and M’Cor-mick on which the land was sold. That judgment was a lien on the real estate of the defendants, and the effect of the declaration of Maxwell, and it may be the design of it, was to destroy that lien. This we think he could not do.

The judgment-debtor cannot defeat the purchaser, nor affect the rights of the judgment-creditor or those claiming under'him, by daring he had no title to' the land sold, or that, the title to it was in a third person. The establishment of such .a rule would be to invite and encourage fraud. In the - case of Phoenix v. Dey et al. 5 Johns. 412, the Court says that the declarations of a party to,a sale or transfer, going to.destroy and take away the vested rights of another, cannot, ex post facto, work that consequence, nor be regarded as evidence against the vendée' or assignee.

So, it is decided that the declarations-and confessions of parties, to the prejudice of-.the rights of third persons, are insufficient- 7 Cowen, 760. - Admissions made by an insolvent debtor subsequently to insolvency, are' not admissible against the trustees of his estate. Smith v. Simmes, 1 Esp. Rep. 330. When a plaintiff had, previously to the suit, assigned -his'interest in the debt, of which the defendant had notice, he could not impair that- interest by.any confessions subsequently made by him, to the-prejudice of his assignee. Frear v. Evertson, 20 Johns. 142. So, in Taylor et al. v.

Marshal, 14 Johns. 204, it is held, that after judgment and execution, an antecedent sale of the property levied on cannot be set up and proved by the confessions and declarations of the parties, to the prejudice of the rights of a third person. A. S. White and R. A. Lockwood, for the appellant. I. Naylor, for the appellee. The law- seems to be well settled, that the admissions and declarations of a party; that tend to injure or impair the vested rights of third persons, will not be received to their'prejudice. Per Curiam. The judgment is reversed; and the verdict set aside, with costs. Cause remanded, &c.