
    Carpenter against Stilwell and another.
    A sheriff, upon whom a fine has been imposed by the court to the amount of an execution issued to him, for wilful neglect of his duty in regard to it, and who pursuant to the order of the court has paid the fine to the judgment creditor, has no authority to enforce the execution against the debtor for his own indemnity.
    Nor has he authority to do so where the amount of the fine was paid with his moneys by a third person, and the judgment assigned to such third person to be held for the sheriff’s benefit.
    In selling property under an execution, a sheriff acts by virtue of a power: if the power does not exist, no title passes.
    Therefore, where a sheriff was fined by the court to the amount of an execution in his hands, for neglecting to return it, and after the fine had been paid to the judgment creditor with moneys of the sheriff, and the judgment assigned to a third person for his benefit, the sheriff sold the real estate of the debtor on the execution, and executed a deed of the same to a judgment creditor who redeemed ; Held; that the sale was void, and no title passed by the deed.
    An officer cannot execute final process in his own favor, or for his own benefit.
    A request to charge the jury should be in such form, that the court may charge in the terms of the request without qualification.
    A party is not estopped from denying that an officer had power to sell his property under an execution, unless it appear that acting with knowledge of the facts invalidating the power, he misled the purchaser.
    The plaintiff brought this action in the city court of Brooklyn, for the recovery of certain real estate within that city. Upon the trial he gave evidence of title in himself, and that the defendants were in possession of the premises claimed, at the time of the commencement of the action.
    The defendants gave in evidence the records of two judgments against the plaintiff, recovered in the supreme court on the 11th day of March, 1846, one in favor of Thomas B. Coddington for $445,80, and the other of Palmer Sumner for $243,14, and duly docketed in the county of Kings; also, executions issued thereon on the 25th day of April, 1846, to the sheriff of the county of Kings, and a certificate of a sale of the premises in question under the same, on the 15th day of December, 1847, to one Henry P. Cropsey, and an assignment of the certificate of sale on the 17th day of March, 1849, from Cropsey to the defendant Stilwell.. Evidence was also given of a redemption of the premises on the 14th day of March, 1849, by the defendant, Stilwell, as assignee' of four judgments against the plaintiff. The defendants also gave in evidence a deed of the premises from the sheriff of the county of Kings, to Stilwell, dated March 16,1849, acknowledged and recorded March 17, 1849, reciting the sale under the executions upon the judgments in favor of Coddington and Sumner, and the redemption of the property by the grantee, and conveying the premises with other property in consideration of $1242,70, being the amount paid to redeem.
    The plaintiff then offered in evidence proceedings against the sheriff upon the relation of Coddington and Sumner, for not returning the executions issued to him upon their respective judgments, and that upon the return of attachments against him, in May, 1847, the court imposed a fine upon him for the non-return of such executions, to the amount of thé judgments and the costs of the proceedings, and ordered him to be committed until it was paid; and to prove that on the 2d day of September, 1847, and before any further proceedings were had, the sheriff paid the amount ordered by said court to said Coddington and Sumner respectively.
    The defendants objected to the admission of the evidence oil several grounds, only one of which was urged in this court, to wit, that “ The payment of said fine by the sheriff did not extinguish his power to- sell under said executions.” The court overruled the objection and the defendants excepted. The attachment proceedings were then put in evidence by which it appeared that the court by an order made May 15, 1847, adjudged that the sheriff had been guilty of a contempt in wilfully neglecting and refusing to return the executions, and that such misconduct was calculated to and actually did impair, impede, and prejudice the rights and remedies of the relators, and did order and impose a fine of $751,82 on said sheriff, and that $265,33 of the same be paid to Sumner, and $486,49 to Uoddington, and that he pay $49,44 the costs of the proceedings, and that he stand committed until said fine and costs were paid; said order provided, that on said sheriff’s paying 'instanter $49,44, the costs, all further proceedings upon it should be suspended until the 3d day of July then next. The amounts ordered to be paid to the relators were the amounts of their respective judgments, and the whole sum was paid to their attorney about the 2d day of September, 1847, and some time thereafter and before the sale in December the judgments were assigned to George P. Jenkins, a son of the sheriff. Evidence was given of an understanding between the attorney of the judgment creditors and the attorney of the sheriff and his son, at the time of the payment of the money, that the assignments would be made and that the attorney of the plaintiffs in the execution was authorized to make such assignment. Evidence was also given tending to show that the money paid was the money of the sheriff and not of the son, the assignee, and that the assignment was for the benefit of the sheriff. At the sale of the premises by the Sheriff they were purchased by Cropsey, his brother-in-law, who paid no money but applied the amount upon a debt against George P. Jenkins, for which the sheriff was liable as surety, and after the redemption by Still-well and the execution of the sheriff’s deed, Cropsey received his money from Mr. Waring, the attorney of the sheriff, and at his request executed an assignment of the certificate to Stilwell. Mr. Waring, the attorney of the sheriff and of his son, testified that his object in the negotiations was to protect the sheriff and to indemnify him, and he completed the arrangements for the purchase and then told the sheriff to go on and advertise the property; that before this he had named the matter to George P. Jenkins the son, who said he would buy the judgments—that the witness saw the plaintiff several times after the property was advertised for sale; that he wanted to arrange the matter and get the sale deferred, and was told by the witness, that the judgments had been assigned to George P. Jeptins. On a cross-examination he testified that he made no final arrangement until the 6th of September, 1847; that Haynes, one of the sureties of the sheriff, first suggested the taking of the assignment to George P. Jenkins. It did not appear, that the plaintiff was present at the sale by the sheriff.
    The judge charged the jury amongst other things, that the proceedings by the defendant Stilwell to redeem the premises were regular and valid; and that the important question was whether at the time of the sale, the sheriff had in law any valid or subsisting power to sell the lands of the plaintiff, under the executions upon the Coddington and Sumner judgments; that if they believed from the evidence, that the moneys paid to the plaintiff in the executions respectively were the proper moneys of the said sheriff, and that said payments were made by him or on his account in satisfaction of the fines imposed upon him by the supreme court, the sheriff could not lawfully enforce the judgments and executions for his own indemnity; and that the sale and conveyance made by him, if made under the circumstances and for ’the purpose so alleged by the plaintiff, was unauthorized, illegal and void as against the plaintiff, and did not affect his title to the premises in dispute; to which instruction the defendant excepted.
    The judge further instructed the jury, that if before the. money was paid to the judgment creditors, there was an agreement made by them or on their behalf with George P. Jenkins, that upon payment by him of the amount due upon the judgments they would assign the same to him; and the money was paid by him upon the faith of such agreement, and the judgments were assigned to him in pursuance of it, and the property of the plaintiff was subsequently sold under the executions by the directions and for the benefit of the assignee, the defendants, were, entitled to a verdict. That it was immaterial from what source the moneys paid by George P. Jenkins, were obtained by him, if the jury believed they were his proper moneys and were paid by him on his own account and for his benefit, on a purchase by him of the judgments—that if the money sp paid came from the sheriff, it would not vary the legal effect of the transaction, provided it was paid by George P. Jenkins upon a purchase of the judgments in good faith, and not upon a nominal or colorable purchase made in his name, but in truth with the money and on behalf of and for the benefit of the sheriff—that it would have been legal for the sheriff to have made a gift of the money to his son, for the purpose of enabling him to make the purchase, and that it was for the jury to determine the real character of the transaction.
    The defendants’ counsel requested the court to charge the jury, that if the judgments had not been paid either by the plaintiff or by some person at his request, or with the intent to satisfy the same, then the defendants were entitled to recover; which the court declined to do, except as already charged. The defendants’ counsel further requested the court to charge, that if the money was paid by the sheriff as a fine, that such payment did not extinguish or satisfy the judgments; which the court refused to do.
    The defendants’ counsel also requested the court to charge, that if the money was paid to the execution creditors or their attorney and received as a consideration for the assignments of the judgments, that then the judgments were not satisfied. The court refused so to charge without the qualification, “if the assignments were to be to any person other than the sheriff.”
    The defendants’ counsel further requested the judge to charge, that if the money was paid and received as a consideration for the assignments of the judgments, then it was immaterial whether it was the money of the sheriff or not, and the judgments were not satisfied: the judge refused -so to charge.
    Lastly, the court was requested to charge the jury, that if they believed that the plaintiff knew that the judgment creditors had received the money and the judgments had been assigned, and that -the property was advertised to be sold, and then endeavored to have the sale deferred and did not give any notice to the purchaser at the time of the sale, he is to be deemed as having acquiesced in the right to sell, and is estopped from setting up that there was no right or authority to sell; which charge the court declined to make: in which several particulars and refusals to charge, the counsel for the defendants excepted.
    The jury rendered a verdict in favor of the plaintiffs. The defendants tendered a bill of exceptions, and after judgment upon the verdict in the city court of Brooklyn, appealed to the supreme court, which, sitting in the second district, reversed the judgment of the city court, and gave judgment in favor of the defendants, with costs. (See 12 Barb. 128.)
    The plaintiff appealed to this court.
    
      Edward Sandford, for the appellant.
    
      Samuel Beardsley, for the respondent.
   W. F. Allen, J.

The sheriff was adjudged guilty of a contempt in the wilful neglect and refusal to return the executions against the plaintiff, upon which he subsequently sold his real estate, including the premises in question, and was ordered to pay to the judgment creditors a fine to the amount of their respective claims, as the damages which they had sustained by his default, together with the costs of the proceedings against him.

The only question of any importance is, whether a sheriff who by reason of his neglect to execute final process has been compelled, either by- action or by proceedings as for a contempt to satisfy the claim of the execution creditor, can enforce the process against the property of the debtor for his own benefit and indemnity. The jury have found that the assignment of the judgments to the son of the sheriff was not upon a purchase by him or for his benefit, but was colorable and for the benefit of the sheriff and for his indemnity; and that the money to the amount of the judgments, and which was the only consideration of the assignments, was paid by the sheriff to the plaintiffs in the judgments, in satisfaction of the fines imposed upon him. As the sheriff could not do that indirectly which the law would not tolerate directly, the legal rights of the parties will not be varied by the form or disguise which the actors have given to the transaction. It was in substance and effect a payment of the .judgments by the sheriff and an assignment thereof to him, and an attempt to enforce their collection for his own benefit. (Bigelow v. Provost, 5 Hill, 566.)

At the time of the sale of the property in question, the sheriff by whom the sale was made was the party and the only party beneficially interested in the execution of the process ; and to allow an officer to wield the process of the courts in his own behalf, is contrary to well settled principles of public policy and would lead to great abuse. (Per Platt, J. in Sherman v. Boyce, 15 John. 443.) A sheriff cannot do execution when he himself is a party, and therefore an extent by him where he is conusee will be void. (Com. Pig. Viscount, E. 1.) By statute, process in actions in which the sheriff is a party, mush be directed to and executed by the coroner of the county; (2 R. S. 441, § 84;) and whether the sheriff is nominally a party or only beneficially interested cannot affect the question. If he owns the judgment upon which the final process issues, it is process in his favor, although he may not be a party to the record, and his name may not appear in the writ. This was in effect decided in Mills v. Young, (23 Wend. 314,) in which the court say a sheriff cannot execute final process in his own favor” and apply the principle to a case in which the deputy sheriff having become liable for the debt gave his own note to the judgment creditor, took an assignment of the judgment, and afterwards under a threat to enforce the execution, procured the debtor to give his note for the amount. The note was declared to be void. The danger of a perversion of the process of the court by an interested officer, is greater when the fact that the officer charged with its execution is the party in interest, is concealed, than when it is apparent upon the face of the process itself; and if policy forbids the execution by an officer of process to which he is a party by name, a fortiori should the execution of process by him, nominally in favor of others but really in his own favor, be forbidden. I am of the opinion that the acts of the sheriff for his own benefit in the execution of the final process of the court upon the judgments against the plaintiff, and the sale and conveyance by him of the premises in question were void; that when he became the owner of the judgments his power to act as sheriff under the executions ceased, and that his only remedy, if any he had, was to sue out a new execution to the coroner of the county.

But in this case, still back of the proposition considered and which I deem fatal to the defendants in this action, is the question made upon the trial and mainly relied upon in this court, whether the sheriff under the circumstances having become liable to the judgment creditors for the amounts of their judg.ments and been compelled to satisfy them, could be subrogated by assignment or otherwise, to the rights of the creditors, and entitle himself to enforce the judgments for his own indemnity.

It is not so much a question of individual right as of public policy. It is fit and proper that the judgment debtor should be made to pay his debts, and it is the province and business of the sheriff to whom process is issued to compel him to do so, by a proper, vigilant, and seasonable performance of his duty: but it is not discreet or consistent with just views of policy, by any inducements to encourage a lax or careless discharge of the re^ sponsible duties devolved upon sheriffs. If an officer intrusted with the execution of final process, may without peril of ultimate loss, select his own time for its execution, he may seriously interfere with the rights of the creditor by delaying the process to his prejudice, and he may at his option employ the same process to annoy and oppress the debtor and to make gain to himself. Both the debtor and creditor will be in a measure subject to the caprice of the sheriff, and serious inconveniences will result, if rights either equitable or legal are held to result to a sheriff from his own breach of duty. While it has ever been the policy of the law to protect an officer within proper limits from loss or damage in the faithful discharge of his duties, it has done nothing to encourage or protect him in the neglect or violation of those duties. The consequences of all violations of duty have been visited upon him, and he has not been supposed to be entitled to any equities beyond those which enure to any other wrongdoer.

The proceedings upon the attachment against the sheriff and the payment by him of the fine to the judgment creditors to the amount of their claims, was a satisfaction to them, and the plaintiffs therein had no further claim upon the sheriff in respect to the executions or right to enforce them against their debtor. The executions had fully accomplished their purpose, which was to raise the money to satisfy the judgment creditors, and that object being attained, the power conferred by the writs upon the sheriff was spent. (Sherman v. Boyce, 15 John. 443.) The court adjudged that the plaintiffs had sustained damages by reason of the default of the sheriff, to the full amount of their respective claims, and imposed a fine upon him to that amount and directed it to be paid to them, and the payment and acceptance of this fine necessarily operated to divest them of all power as well as right to enforce the process. (2 R. S. 538, §§ 19-21.) It has been uniformly held from a very early period, that in such case no right resulted to the sheriff, either to maintain an action against the debtor for money paid, or to retain and enforce the execution for his own benefit. Ho distinction has been taken between payments voluntarily made by the sheriff and those made upon compulsion in consequence of a liability incurred by him, and there is no difference in principle. It cannot be material whether a sheriff voluntarily pays the amount of a claim of his own money, or by a voluntary breach of duty places himself in a position in which the payment can be enforced against him. An action is denied to him because “ such a practice would be not only against the rules of law but would tend to multiply suits and increase litigation.” (Jones v. Wilson, 3 John. R. 434; Menderback v. Hopkins, 8 id. 436; Whittier v. Heminway, 9 Shep. 238; Beach v. Vandenburgh, 10 John. 361.) The right to enforce the execution for his own benefit has been denied him from principles of policy and the “grand inconvenience” which would ensue. (Reed, v. Pruyn, 7 John. 426; Sherman v. Boyce, 15 id. 443; Mills v. Young, 23 Wend. 314; Bigelow v. Provost, 5 Hill 566.)

In Peecü v. Pruyn, the court would not permit the deputy sheriff who had paid the debt to enforce the execution for his own benefit; and in Bigelow v. Provost the sheriff having been attached for not returning the execution, the deputy to whom it had been delivered paid the judgment and took an assignment of it for his own benefit, and it was held on a motion to set aside the execution, that he could not enforce its collection, although the defendant had promised to pay it to him. The learned judge by whom the decision was pronounced, while he regretted to see the moral obligation which had in that case been incurred by the debtor violated, was constrained to uphold the principles of policy which were involved in that case and which forbade the execution to be enforced at law. A deputy sheriff was held liable in trespass for selling the goods of the judgment debtor upon an execution, after the creditor had been paid from moneys raised upon the note of the debtor and the deputy sheriff, and under an agreement that the deputy should retain the execution in his hands, and if he was called upon to pay the note might proceed to sell for his own indemnity, and when the money was paid to the creditor he was told that the execution was not intended to be satisfied. Platt, J. says, The debt must therefore be deemed satisfied as to the judgment creditor, and that fact being established, the law founded on wise policy considers the officer functus officio.” "To allow any man to wield the process of our courts in his own favor, in order to exact such measure of justice as he may think due to himself, would not only lead to oppression and abuse but would tend to subvert the foundation of private rights and of civil liberty.” (Sherman v. Boyce, 15 John. 443; and see Hammatt v. Wyman, 9 Mass. R. 138.) Stevens v. Rowe, (3 Denio, 327,) was an action on the case for not returning an execution, and Beardsley, J. in giving judgment on a motion for a new trial, says, “If the sheriff should b^compelled to pay the full amount of the execution, for the reason that the judgment was a lien on real estate out of which the money might have been collected, as was offered to be proved on the part of the plaintiff, he would be entirely remediless. He could not enforce the judgment and execution for his own indemnity but must stand the entire lossthus recognizing and reaffirming the doctrine of the cases before cited.

The debt being paid, the power to sell under the execution ceases, and as the process would not protect the officer, so no title could pass to the purchaser of property under it. The sheriff in making sale of property under process of the court, acts under a power, and if the power does not exist, no title passes even to an innocent purchaser. He who buys under a power buys at his peril and acquires no title without showing a valid subsisting power. (Wood v. Colvin, 2 Hill, 566; Cameron v. Irwin, 5 id. 272 ; Deyo v. Van Valkenburgh, id. 246; Swan v. Saddlemire, 8 Wend. 676; Delaplaine v. Hitchcock, 6 Hill, 14; Carter v. Simpson, 7 John. 535.)

It is not necessary to decide that the payment of the fine to the judgment creditors to the amount of their respective claims, was a satisfaction of the judgments. It is sufficient to say that such payment put an end to the power of the sheriff under the execution, that the process thereby became functus officio; although were it necessary, in order to give effect to the reasons upon which the rule prohibiting a sheriff from enforcing process by way of indemnity against bis own neglect is based, I see no reason why the judgments should not within the reason of the rule be held to be satisfied. But the question in this case was as to the power of the sheriff under the process upon the judgment which had accomplished its purpose, and the court below therefore were not called upon to pass upon the effect of the payment by the sheriff upon the judgments, and properly declined to do so when requested by the counsel for the defendants. The request was, however, to charge that if the money was paid by the sheriff as a fine, that such payment did not extinguish or satisfy -the judgment, and did not quite meet the case. Perhaps payment of a mere fine would not have affected either the judgments or the process based thereon; but the fine was imposed under the statute and paid to the plaintiffs as a compensation for their damages, and the result is the same as it would, have been upon a recovery of the same amount in an action upon the case for the same default. The same remark is in part applicable to the request to charge—that if the judgments had not been paid either by Carpenter or by some person at his request, or with intent to satisfy the same, then the defendants were entitled to recover. If the process having spent its force had become void, it was not material to inquire whether the judgment upon which it was founded was subsisting or not. Again, the intent with which the payment was made did not control its effect,'and it would have been error to have held, that the absence of an intent to satisfy the judgment on the part of the person paying the claim to the creditor, would operate to retain the judgment in force. In Sherman v. Boyce the intent not to satisfy the judgment was clearly established, and yet it was properly held not to vary the legal effect of the transaction, and the same may be said of all the cases cited.

It was also claimed upon the trial, on behalf of the defendants, that if the plaintiff knew that the judgment creditors had received the money and the judgments had been assigned, and that the property was advertised tó be sold and then endeavored to have the sale deferred, and did not give any notice to the purchaser at the time of the sale, he is to be deemed as having acquiesced in the right to sell, and is estopped from setting up that there was no right or authority to sell. Had there been nothing in the case, but the payment of the amounts of the judgments to the plaintiffs therein, and the assignment of them to George P. Jenkins, which are the only facts noticed in this connection by the defendants’ counsel, the sale would have been valid, and the plaintiff could not effectually have objected to its validity. The important fact and to which no allusion is made, is that the payment to the creditors was made by the sheriff, and that he then became the owner of the judgments, and by the sale of the property was seeking to enforce the executions for his indemnity; and it was not claimed in this proposition, that at the time of the negotiations of the plaintiff with the attorney of the nominal assignee and of the sheriff, or at the time of the sale, this fact was known to the plaintiff, and if not known, his silence upon the subject could not estop him. The request, therefore, of the defendant’s counsel to the court, to instruct the jury in this behalf, did not meet the case or any claim of the plaintiff, or any state of facts or any legal proposition upon which the plaintiff sought or was allowed to recover.

But had the proposition embraced the whole case, and knowledge of the true character of the transaction been brought home to the plaintiff before bis negotiations for an extension of the time of payment, there would have been no estoppel. The ■doctrine of estoppels in pais is to be strictly guarded and ■carefully applied. Questions upon this branch of the law more nearly concern the conscience and have to do with good morals, and are less controlled by technical rules, than most legal questions that arise. The inquiry always is, whether the party against whom an estoppel is alleged, has by his actions or words influenced the conduct of others, so that a wrong will be done to those so influenced, if the party should be permitted to show a state of facts inconsistent with his actions and words. Beardsley, J. in Frost v. The Saratoga Mutual Ins. Co., (5 Denio, 154,) says: “ An estoppel in pais arises when one person is induced by the assertion of another to do that which would be prejudicial to his own interest, if the person by whom he had been induced to act in this manner was allowed to contradict or disprove what he had affirmed.” Lord Denman thus defines an estoppel of this character: But the rule of law is clear, that when one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.” (Pickard v. Sears, 6 Ad. & E. 469. See also to the same effect, Watson’s Ex’rs v. McLaren, 19 Wend. 557; Dezell v. Odell, 3 Hill, 215.) In Welland Canal Co. v. Hathaway, (8 Wend. 480,) it was held that the acts or admissions relied upon by way of estoppel must have been intended to influence the conduct of the party setting them up; and Griffith v. Beecher, (10 Barb. 432,) is to the same effect. There was clearly nothing in the conduct or declarations of the plaintiff which could estop him from alleging the invalidity of the sale of the premises in question. 1. In his negotiations with Waring, the attorney, he made no declarations which he now seeks to gainsay. If he then knew the true character of the transaction, the same was better known to Waring and his principals, and his silence could not and did not mislead them. 2. There is no pretence that the plaintiff did any act or made any declaration, or refrained from speaking when he might and in good conscience should have spoken, with a view to influence the actions of any other person. He was not present at the sale, and there is no evidence that he knew the time and place at which the premises were advertised to be sold. Not being present Ms silence could not have influenced the conduct of those present, and his absence, without any knowledge of those present of the reasons of his absence, could not have induced them to suppose that he acqmesced in the sale. The plaintiff was not under any obligations to attend the sale. It was as much the duty of persons desirous of becoming purchasers at the sheriff’s sale to seek the plaintiff, as it was the duty of the plaintiff to look after them. 3. There is no room for pretence upon the ■ evidence, that the purchaser Cropsey in making the purchase, or the defendant Stilwéll in acquiring the rights of the purchaser, were at all influenced in their actions by the conduct or declarations of the plaintiff. The court below therefore did not err in refusing to charge in tMs behalf as requested by the counsel for the defendants.

The offer of the plaintiff to prove the proceedings against the sheriff and the payment of the fine by the sheriff, was not as full as it might have been, and did not embrace in terms all the facts established by the evidence; but the evidence itself was competent, and formed a necessary part of the testimony showing that the sheriff was divested of all power and authority to sell upon the execution.

There was no error committed by the city court, and the judgment of the supreme court should be reversed, and that of the city court of Brooklyn affirmed, with costs in the supreme court and this court.

Johnson, J.

The plaintiff having succeeded at the trial, and the supreme court having reversed the judgment for the plaintiff, upon exceptions taken at the trial by the defendants, and the plaintiff having appealed to this court from the judgment of reversal, we are to consider whether any of the defendant’s exceptions are well taken.

The first of these exceptions relates to the ruling of the court upon an offer of the plaintiff to prove certain proceedings in the supreme court, showing that before the sale of the premises in question under executions by the sheriff, he had been fined by the supreme court for contempt in not returning those executions, to the amount which he had been commanded to collect upon them with costs; and that before any further proceedings were had, the sheriff paid the amount to the plaintiffs.' The plaintiff insisted that such payment put an end to the sheriff’s authority to sell on the executions. On the other hand, the defendants took several grounds of objection to the admissibility of the offered proof. The court ruled that the evidence was admissible, but did not decide any thing as to the effect of it when admitted. Its admissibility therefore is the only question before us. The decision of that question depends upon the view we shall take of the general question in the cause, which is whether a sheriff who has been fined in the amount of an execution for neglect of duty in respect to it, and who in pursuance of the order imposing the fine has paid the amount of the execution to the plaintiff therein, can without any order of the court imposing the fine, authorizing him so to do, proceed to sell real estate of the defendant upon the execution, for his own indemnity. That question will be considered when we come to the charge under which the case was submitted to the jury. If the plaintiff was right in respect to this last proposition, then the evidence offered was admissible, because it was a material part of the plaintiff’s case upon the question stated.

The substance of the charge was that if the moneys paid to the plaintiffs in the executions were at the time of such payment the sheriff’s moneys, and if the payment was made by or on account of the sheriff, in satisfaction of the fines imposed upon him for neglect of duty in returning the executions, the sheriff could not lawfully enforce the judgments and executions for his own indemnity; and that the sale and conveyance made by the sheriff, if made under the circumstances and for the purposes before stated, was illegal, unauthorized and void as against the plaintiff, and did not affect his title. To this the defendant excepted.

A purchaser under a power, is bound to see to it that the power exists. If it does not exist, he can acquire no title. (Jackson v. Morse, 18 John. 441; Wood v. Colvin, 2 Hill, 566.) The mere fact of paying a valuable consideration does not help his case, any more than it would if he purchased from a stranger to the title. The sheriff who sells under a judgment and execution exercises a statutory power, by virtue of which alone his deed can operate upon the title to the land sold. When the judgment has been paid, the authority to sell under it is gone. The plaintiffs in the executions on which the sale was made which is in question in this case, had received from the sheriff the whole amount of their judgments. If that payment had been voluntary on the part of the sheriff, he could not have proceeded to collect the executions for his own indemnity. (Reed v. Pruyn, 7 John. 426; Sherman v. Boyce, 15 id. 443; Mills v. Young, 23 Wend. 314; Bigelow v. Provost, 5 Hill, 566.) That no distinction exists between a voluntary payment and one made in discharge of a fine imposed on the sheriff for not returning an execution, is shown in the last case. The court which imposes the fine might probably provide, that the sheriff should have the benefit of the demand against the defendant. Such was probably the effect of the rule by which the fine was imposed upon the sheriff in this case, up to the 3d of July, 1847, until which time, on certain conditions proceedings upon the order were stayed. The object of the provision probably was to enable the sheriff even at that late period to save himself- from the consequences of his previous misconduct, by going on under the execution against the property of the defendant. He did not avail himself of this privilege. After the period limited by the order he paid the money and then went on to sell for his own indemnity. The good policy of the rule which forbids such conduct on the part of the sheriff is plain. To protect him from the consequences of his misconduct in not enforcing the process in his hands, by subrogating him to the rights of the creditor, would in the first place take away a strong stimulant to a prompt discharge of his duty, and in the next place would as the cases say, “ open a wide door to abuse and oppression.”

The question whether a purchaser in good faith for a valuable consideration, and without notice, would stand in any better position to assert title, founded upon a sale, under such circumstances, was not made at the trial. If the defendants desired to take that ground they should have stated it in their exception, or called the attention of the judge to it by a proper request. The ground of bona fide purchase, does not seem to have been alluded to during the trial, except as one ground of the defendants’ objections to the admissibility of the evidence offered on the part of the plaintiff, as before stated. In that aspect of it, the judge was required by the defendants to determine in advance that the defendants had made out a case of bona tides in the purchase, which was a question for the jury.

At the conclusion of the charge, several requests to charge were presented to the judge, which I proceed to notice. The first was, that if the judgments had not been paid, either by the defendant in the execution, or by some person at his request, or with the intent to satisfy the same, then the defendants were entitled to recover. That, if charged, would have been at least equivalent to holding that the sheriff himself could by the payment of his fine, if he did not thereby intend to satisfy the judgments, acquire the right to sell for his own indemnity under the executions. That proposition has been already disposed of. The next proposition was, that if the money was paid by the sheriff as a fine, such payment did not extinguish or satisfy the judgments. That naked question did not arise in the case. The question was, whether if the sheriff paid the money as a fine, he could afterwards enforce the executions for his own indemnity, not, whether that payment of itself extinguished or satisfied the judgments.

The third request was, that if the money was paid to the execution creditors or their attorney, and received as a consideration for the assignment of the judgments, then the judgments had not been satisfied or extinguished. The court refused so to charge without adding by way of modification, “ if the assignments were to be to any person other than the sheriff.” The request as made, involved the proposition that the sheriff might in that way acquire the right to enforce the judgment for his own benefit, and was therefore rightly rejected.

The next request involved the same proposition in more direct terms. It required the court to hold, that if the money was paid and received as a consideration for the assignment of the judgments, then whether it was the money of the sheriff or not was immaterial, and the judgments had not been satisfied or extinguished. It was rightly refused upon the ground before stated.

The last request was that the jury should be charged, that if they believed Carpenter, the plaintiff, knew that Coddington had received the money, and the judgments had been assigned, and that the property was advertised to be sold, and then endeavored to have the sale deferred, and did not give any notice to the purchaser at the time of the sale, he was to be deemed to have acquiesced in the right to sell, and was estopped from setting up that there was no right or authority to sell. This request was refused.

We have held, (Bagley v. Smith, MS.) that a request must be in such form that the judge may properly charge in the terms of the request, without qualification. Assuming that in this case the judge may have been bound upon a proper request to charge upon the question, whether the plaintiff was or was not estopped from denying the sheriff’s authority to sell, several points not embraced in the request to charge, ought to have been added for their consideration. In the first place, knowledge on Carpenter’s part that the judgments had been assigned, would have imposed no duty upon him to interfere to prevent the sale; because, as the court held upon the trial, if the assignment to Geo. P. Jenkins had been made to him for his own benefit, and upon payment out of his own funds, the sale would have been good; and knowledge on Carpenter’s part, to bind him by an estoppel in pais, ought to have gone at least to the extent of acquaintance with the facts on which his rights depended. The request should at least have embraced knowledge on Carpenter’s part that the judgments had been assigned for the benefit of the sheriff. In the second place, assuming that all the other facts mentioned in this request were sufficient, unless the defendants were purchasers bona fide, or at any rate were in some way misled as to their rights by Carpenter’s silence, they could set up no estoppel. The refusal to charge this proposition was clearly correct.

Denio, Parker and Edwards, Js. concurred.

Gardiner, Ch. J. was in favor of affirming the judgment of the supreme court.

Judgment of the supreme court reversed, and that of the city court of Brooklyn affirmed.  