
    William Frederick Lawrence v. Sophia L. Woodworth et al., App’lts, Impleaded with Ann E. Coe, as Sole Surviving Trustee under Will of Frederick A. Coe, Deceased, et al., Resp’ts. William Frederick Lawrence v. James M. Fuller et al., Sophia L. Woodworth et al., App’lts; Ann E. Coe, Trustee, etc., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25, 1888.)
    
    Deed—When a mortgage—What not sufficient to prove.
    William Woodworth was possessor of the lands in question in 1852 and: continued to hold them until 1866. In 1858 a judgment against said Woodworth was obtained and docketed in the county where this land was. situate, and all the right, title and interest of said Woodworth, on October 6, 1858, was sold by the sheriff for $5,000; a certificate of such sale was-duly made which was assigned to one Coe, and a deed of the premises-' sold was made by the sheriff to Coe; subsequently Woodworth gave a, deed to a third party, who claimed that the sheriff’s deed was a mortgage. In the absence of proof that the large sum of money paid by Coe for the sheriff’s deed was not really paid by him, Held, that no general oral statement made by Coe that he held the title for Woodworth, and that he had little or no interest in it, would be legally sufiicient to destroy the sheriff’s, deed.
    Appeals by defendants Woodworth from the judgment-in above action in favor of the defendant, entered in Westchester county clerk’s office, Ann E. Coe, respondent, and. against the Woodworths, appellants.
    On the 5th day of February, 1852, Josiah Rich and James Scrymser, then the owners thereof, and their wives, conveyed to William W. Woodworth, the one equal undivided, fourth part of the premises in subdivision 1 of the complaint described, and on the 8th day of January, 1860, the said William W. Woodworth and wife conveyed to Frederick A. Coe the one equal undivided fourth part of said land and premises, and after the conveyance by said Rick and Scrymser to William Chamberlain and Alexander M. Lawrence, of the equal undivided fourth part of said land and premises, the premises in question were owned and possessed as tenants in common by the persons as follows r. One-fourth by Josiah Rich, one-fourth by James Scrymser, one-fourth by Frederick A. Coe, one-eighth by William Chamberlain and one-eighth by Alexander M. Lawrence.
    In the year 1869 the said owners made application to the-commissioner of the land office for, and received, a grant of the premises in the fifth subdivision of the complaint described, dated the 8th day of December, 1869, and described as in said subdivision 5. And thereafter the premises in the-first and fifth subdivisions of the complaint described, being the premises of which partition is sought in this action, were owned as follows -. Josiah Rich, James Scrymser and Frederick A. Coe, each one fourth part, and the said William Chamberlain and Alexander M. Lawrence each one-eightk part thereof.
    
      On the 9th day of January, 1870, the said Frederick A. Coe died, the owner of the one-fourth part of the premises, in the first and fifth paragraphs of the complaint described, leaving a last will and testament, which was duly probated by the surrogate of Westchester county, wherein he bequeathed and devised to his widow, the defendant, Ann E. Coe, the use and income of all his real and personal property during her life, and, after her death, devised said real and personal property to his nephews and nieces.
    Alexander H. Wallis, who is named as executor in said will, is dead, never having qualified or acted as executor or trustee under said will. On the fifth day of October, James-C. and William Bell recovered a judgment against William W. Woodworth for $12,322.29, which was duly docketed in. Westchester county on the 6th day of October, 1858. An execution was duly issued oh this judgment, and a sale thereunder was made by the sheriff of Westchester county for the sum of $5,000, and a certificate of such sale was duly made by said sheriff, which was duly assigned to Frederick A. Coe, and a deed of the premises sold was made by said-sheriff to said Coe, December 22,1864 (consideration, $5,000), and was recorded.
    This deed conveyed with other parcels all the right, title and interest which Wm. W. Woodworth had on the 6th day of October, 1858, or at any time thereafter.
    
      George H. Foster, for app’lt; Close & Robinson, for resp’t.
   Barnard, P. J.

If we are right in our conclusions in Scrymser v. Lawrence, decided at the present term of the court {ante, 605), these appeals must be disposed of in the same way. The predecessors in title of the appellant died. without any interest in the premises. The Coe title as derived under the sheriff’s deed was superior to the title derived from Woodworth subsequently. In the absence of proof, that the large sum of money paid by Coe for the sheriff’s deed was not really paid by him; no general oral statements made by Coe that he held the title for Woodworth, and that he had little or no interest in it would be legally sufficient to destroy the sheriff’s deed, although it is peculiar that Coe took a deed from Woodworth after his title was complete by the sheriff’s deed, in the absence of proof, the better inference would be that it was in aid of his sheriff’s title.

Pratt, J., concurs; Dykman, J., not sitting.  