Brown vs. H. & E. T. Betts, 13 Wend. 29

By the Court, Sutherland, J. This is a certiorari to bring up proceedings under the act “ to recover the possession of land in certain cases,” 2 R. S. 511, by which it is provided, that when any person shall hold over and continue in the possession of any real estate which shall have been sold by virtue of an execution against such person, after a title under such sale shall have been perfected, he may be removed from the possession thereof. 2 R. S. 513, § 28, sub. 4. The errors principally replied upon are, 1.

That the judge had no jurisdiction in this case, it being an interference with the estate of an habitual drunkard, in charge of a committee; that the chancellor alone has jurisdiction in such a case ; 2. That at all events the committee of the defendant should have been made parties to the application, as they had the ex-elusive possession and control of his estate; and 3. That the statute under which this proceeding was had, was not applicable to a case like this, where an undivided interest only was sold until partition was made. The statute contemplates a simple and

summary proceeding, for the purpose of giving to the party who is entitled to it the immediate possession of land. He must make an affidavit of the facts which, according to the statute, entitle him to such possession; and if, upon due notice, the opposite party does not appear and controvert these facts, a warrant issues of course to put him into possession; if they are denied, a jury is summoned to try the issue then joined.

The material allegations on the part of the applicants in this case were, that the premises of which they sought to obtain possession had been sold by virtue of an execution against Brown, and that a title under such sale had been perfected, and that such title was vested in them. Whether it was struck off at the sale to one or both of them was not material, if at the time of the application, the title was in them under such sale. The affidavit of Brown, therefore, strictly, did not deny any material allegation in the affidavit of the applicants.

The title of the purchaser, I apprehend, is not in this proceeding to be collaterally tried orjmpeached; the regularity and validity of the judgment are not to be inquired into; nor whether he was a bona fide purchaser. If the judgment and execution are regular upon the face of them, and the applicant shows a title under them, that is sufficient. The fact that the defendant and his estate were in chame O of a committee under the drunkard act when these proceedings were instituted, was not, I am inclined to think, sufficient to take from the officer his jurisdiction of the case.

Brown, it is denied, was in the actual occupation of the premises. He was literally the person holding over and remaining in possession after the sale, and was, therefore, within the words of the act, the party against whom the proceedings were to be had. But I am inclined to thing this is not a legal defence to such a proceeding; and that the purchaser has a right to go on, unless stopped by the court of chancery. 2 Paige, 153 422. 3 id 199.

Whether the sale was fraudulent or not, on account of one of the guardians of the defendant being interested in it, is also a matter to be inquired into, in some direct proceeding for that purpose, and not collaterally in this manner. The circumstances disclosed in this case are certainly of a very suspicious character, in relation to Jared Belts; but this is not the occasion for investigating that matter. I see no objection to proceeding under this statute against a tenant in common, whose interest has been sold.

The purchaser acquires all his right and interest, and is entitled to be substituted for him in the possession. Partition can subsequently be made. It was objected on the argument, that there was a variance between the judgment and execution produced on the hearing, and the recital in the sheriff’s deed. This is merely formal. The variance is amendable, and will be disregarded by the court. 4 Wendell, 462. Proceedings affirmed.