
    JAMES MORGAN, Plaintiff and Appellant, v. BEN HOLLADAY, Defendant and Respondent.
    Before Freedman, Van Yorst and Speir, JJ.
    
      Decided October 31, 1874.
    Every court of record, unless restrained by positive enactment, has the power on motion, to vacate its judgment or process, to prevent a perversion thereof, or to frustrate oppression.
    This power is constantly exercised by courts of equity, to relieve against sales of .real property, and no good reason exists why it should not be exercised to prevent injustice flowing from an irregular and void sale of personal property.
    In the case at bar, the power was properly exercised for the reasons stated by the learned chief justice at special term (ante, p. 53).
    Appeal of George H. Waite, purchaser on the sale trader the execution issued in this action, from the order of the court vacating and setting aside the sale.
    Judgment was entered in this action in favor of the plaintiff against the defendant for seventeen thousand nine hundred and seventy-five dollars, and nineteen cents. Executions were issued same day to the sheriffs of New Yoik and Westchester counties.
    On July 8, 1874, notice of appeal to the general term from said judgment was served, accompanied by an undertaking which was objected to, and returned on the ground that the same was not properly acknowledged nor the affidavits of justification sworn to.
    On July 18, 1874, another and further undertaking was served, which was objected to and returned, on the ground that the sureties had not justified in double the amount of the undertaking.
    
      On July 30, 1874, on motion the court granted leave to the defendant to serve and file a new undertaking, but the court at that time declined to set aside or supersede the execution. Afterwards, on motion, and on August, 24, 1874, the court made an order setting aside a sale made under the execution, on July 27, 1874, to Gfeorge H. Waite, from which order the said Waite, the purchaser under the execution, appeals.
    
      Alexander Thain, and Wesley Gleason, of counsel, for the appellant presented the following points:
    I. The court erred as to the undisputed facts in connection with the giving of the undertaking. The fact is that no attempt was made to give an undertaking until after the issue of the execution and levy made thereunder.
    II., There was no stay of proceedings in the case until after the sale had been made. The first undertaking was without affidavit of justification or acknowledgement, and properly returned as void and of no .effect (Code, § 341). The second was insufficient in amount by about one thousand dollars to stay proceedings, being for double the amount of the judgment only, and returned for that reason (Hoppock v. Cottrell, 13 How. Pr. 461 ; Chemung Canal Bank v. Judson, 10 How. Pr. 133; People v. Tarbell, 17 Id. 125; Halsey v. Flint, 15 Abb. Pr. 367; Newton v. Harris, 8 Barb. 386; S. C., 1 Code R. N. S. 191; Code, § 341). It has been doubted whether the sureties were liable upon such an undertaking (Halsey v. Flint, 15 Abb. Pr. 369). The third not having been served with the notice of appeal, and without leave of court, was likewise without authority of law and properly returned. It must be served with the notice of appeal (Code, § 340 ; Smith v. Heermance, 18 How. Pr. 261; N. Y. Cent. Ins. Co. v. Salford, 10 Id. 344; Cushman v. Martine, 6 Duer, 660). Plaintiff’s remedy was, motion to set aside the undertakings or returning them with notice of the objection ; the latter course was adopted (Parrot v. Warner, 13 Abb. Pr.). Had there been a stay of proceedings, there would have been no occasion for the order of July 30, granting the defendant leave to serve an undertaking with stay until justification of sureties. That order was in fact, a refusal of the court to interfere with what had been done under the execution.
    III. The court erred in assuming the value of the property sold to be about thirty thousand dollars. The only evidence to sustain this is that of the witness McKean, who saw some bills for furniture which varied from twenty-five thousand dollars to thirty thousand dollars in amount; but he does not say that the furniture in this house cost that sum, or that it was worth either sum, or that it was worth as much after two years’ use as it cost. The only direct evidence is that of the witness Hermann, an auctioneer, accustomed to such sales, and familiar with that kind of property and the prices brought at such sales. He saw the furniture and made the sale, and says the price which it brought was fair. The fact that the sale was at public auction, that greater than the usual publicity was given and dealers invited to attend, and that a number did attend and declined to bid above the price for which the goods were struck down, is the best evidence as to the value.
    IV. Inadequacy of price is never, of itself, aground for setting aside a sale (Willard Equity Juris).
    
    V. The levy was regular. The deputy called and announced that he came to levy upon defendant’s interest in the furniture, went through the house and saw the property, made an inventory (although that was not necessary) (Watt v. Cleveland, 3 E. D. Smith, 553 ; Cormack v. Hale, 23 Wend. 468; 2 Cow. Treat. 1071 ; Wood v. Van Arsdale, 2 Rawle, 401 ; Green v. Burke, 23 Wend. 493; Mills v. Thursby, 11 How. 121). The mere entry of the sheriff under the. execution, without any formal act, though the property be not present and the officer does not know where it is, is valid as against the debtor (Crocker on Sheriffs, § 427). The presumption is that a public officer has performed his duty, and the contrary has not been shown in this case.
    VI. Under the revised statutes, all goods and chattels of the debtor are bound from the time of the delivery of the execution (3 Rev..Slat. 5th ed. 644, § 13); and all such" property is liable to sale under such execution, except articles especially exempted by law, choses in action, and mere equitable interests.
    VII. The property was present in the house when sold, subject to the examination and inspection of purchasers. The property was designated verbally, and described by the sheriff in the inventory. It was physically impossible to put it all in one room, and equally impossible for the sheriff to be in several rooms at the same time. An opportunity was offered for examination. It would be a remarkable construction of the law to hold that where the right, title, and interest of a party in a large number of articles, rightfully in the possession of a bailee, was offered for sale in one parcel, that the bailee should be discommoded, his rights invaded, and the goods removed to the public street, so that they could be seen at a glance. The goods were present and within view within the meaning of the statute, which intended to provide against absence and concealment. In Tifft v. Barton (4 Hill, 174), the court say, “In this case it was necessary, as we have already seen, to sell the whole of the property in one parcel. A part of it was in the house, some of it was in the barn, and some was in the fields and elsewhere on the farm. The whole could not be gathered so as to be brought into view at one time without incurring great and useless expense. The sale was made on the farm, and some of the property was actually present and in view. If the officer had previously declared what property in particular was to be sold, and had pointed it out to the persons in attendance, I think the whole should be deemed present and in view within the meaning of the statute.” In Bruce v. Westervelt (2 E. D. Smith, 459), Judge Daly, in delivering the opinion of the court, held substantially that there had been a sufficient compliance with the statute in “ an announcement made at the sale that there were stereotype plates in the vault and that they could be examined.” At all events part was present and fully within view, and as to that part, at least the sale was valid (Linnendoll v. Doe, 14 Johns. 223).
    VIII. The law does not require that sales shall be made in parcels, only that “it shall be offered for sale in such lots and parcels as shall be calculated to bring the highest price” (3 Rev. Stat. 5th ed. 648, § 37). This vests in the sheriff the discretionary power of determining what lots and parcels would be best calculated to bring the highest price, and his discretion ought not to be reviewed by the court unless it appear that he has abused the power vested in him, which does not appear in this case. The sheriff evidently adopted the only reasonable course to be pursued under the circumstances ; the entire property was subject to a lease having nearly two years to run; and no one would be likely to offer anything in the purchase of a chair or a table, the possession of which would be lawfully held by another for that period, and subject to use. The only way the same could be offered with the view of realizing anything would be in bulk, subject to the lease. There is no proof that the property would have brought any more sold otherwise, and the burden is on the defendant to show that it would. The property sold being in the possession of Mr. J affray, and subject to his rights under his lease with the defendant, could only be sold legally and with advantage in one parcel (2 Rev. Stat. 367, § 23; Tifft v. Barton, 4 Den. 173; Crocker on Sheriffs). Had it been sold, under the circumstances, in parcels, scarcely anything would have been realized, and the plaintiff and the sheriff would have been liable in damages to the owner and bailee (Manning v. Monaghan, 23 N. Y. 549).
    IX. The sale of tlie right, title, and interest of the defendant was proper. The estate which the defendant had in the goods was qualified by the right of Jaffray, the lessee, to the possession and use of the same for two years, and the interest sold was defendant’s title, subject to this lease, and was properly expressed in the words, “right, title, and interest.” “Alevy upon the right, title and interest is in the law equivalent to a levy upon the things themselves” (Waid v. Graylord, 1 Hun. 607). “A sale of all the right, title, and interest was a sale of all that was vendible on execution against the defendant” (Porter v. Parmley, 52 N. Y. 190).
    X. There was no collusion shown. The sheriff did i as he was directed and required by the execution to do. The extra advertising that was done, his calling to see Mr. Barlow, and his entire course show good faith on his part; and the necessity which appeared for sending the telegram shows no previous arrangement or collusion on behalf of the plaintiff, nor was there any with the purchaser.
    XI. The order setting aside this sale of personal property is without precedent. There is no adjudged case where a sale ofpersonal property has been set aside or interfered with, on motion, especially after the sale has been consummated and title passed. The parties have invariably been left to their action, either legal or equitable ; and especially is the latter the proper remedy when the rights of third parties have intervened. Sales of real estate on execution have been set aside on motion, but only for fraud or collusion, and because the court retains control until after the time to redeem has expired ; and also, in foreclosure and partition, for such are proceedings in rem, the disposition of the property being the primary object of the suit, and even in these cases the court has refused to interfere when the sale has been consummated, unless fraud or collusion has been shown. The learned judge is in error when he says that the power to set aside, on motion, sales of personal property is sustained by authority. 1 Burrill Pr. 300, does not touch the point it is cited to sustain. The only portion of the text bearing upon this case is to the effect that if the judgment be not paid, the sheriff should proceed to sell the property levied upon. Bixby v. Mead, 18 Wend. 611, was a motion at special term, unopposed to set aside a sale on the ground that a person who had been appointed to attend had forgotten to do so. There is nothing from which an inference can he drawn that the property was anything hut real estate / but the fact that a resale was ordered, and the manner in which the court speaks of the property, would seem to indicate that real property had been sold. Davis v. Tiffany, 1 Hill, 642, was a motion for a perpetual stay of a fi. fa., upon which it was sought to sell real estate under a judgment recovered more than ten years before, against a prior owner, upon which property it had ceased to be a lien. Ames v. Lockwood, 13 How. Pr. 555, was a motion to set aside a sale of real estate on the ground that the judgment creditor had been misled by the statements of the sheriff into not attending upon the sale. Richards v. Varnum, 8 How. Pr. 79, was a motion to amend a sheriff’s certificate on sale of real property by striking therefrom the description of a lot in which the defendant had an equitable interest only, under a contract to purchase. Myers v. Kelsey, 19 Johns. 197, was a refusal of the court to determine the rights of the parties, on motion to stay proceedings on a jü. fa., under which it was attempted to sell real estate upon a prior judgment which had been previously sold on a later judgment. The question was whether the judgment had been properly revived so as to continue to be a lien in advance of the later judgment. The court left the parties to their remedy by action. Adams v. Elliott, 1 How. Pr. 220, was a motion by Jaques, as landlord, that the sheriff pay over to him the proceeds of sale of the defendant’s chattels, on the ground that the rent of the premises in which they had been situated had accrued prior to the date of the sale. A question arose as to the extent and sufficiency of the levy. Held, these were fair questions to be submitted to a jury. The foregoing is submitted as a fair review of the decisions referred to in the opinion, and not one of them will be found to justify the order appealed from. The court should not, on ex parte affidavits, where no opportunity has been afforded for the cross-examination of witnesses, attempt to dispose of so important an inquiry, especially, where the rights of third persons not parties to the suit, are involved.
    
      John Sessions, defendant’s attorney, and Joseph Larocque, of counsel,
    presented the following points.
    I. This court, at special term, had jurisdiction and power to make the order appealed from (Kellogg v. Howell, 62 Barb. 280; 1 Barb. Ch. Pr. 538; 1 Burr. Pr. 300 ; Bixby v. Mead, 18 Wend. 611; Davis v. Tiffany, 1 Hill, 642; Ames v. Lockwood, 13 How. Pr. 555 ; Richards v. Varnum, 8 Id. 79 ; Dwight’s Case, 15 Abb. Pr. 259 ; Ontario Bank v. Lansing, 2 Wend. 260 ; Mulks v. Allen, 12 Id. 253).
    II. The pretended sale of the sheriff was a nullity, for the reason that property let to hire can not be levied upon or sold under execution against the owner during the time the property is so hired, and while in the possession of the lessee (Crocker on Sheriffs, 2nd R. ed. § 452, citing Hartford v. Jackson, 11 N. H. 145).
    III. It is a general principle that a sheriff can only levy on goods of which be may lawfully take possession, i. e., goods of which the judgment debtor is in possession, although that possession be in virtue of a special property, or to the immediate possession of which the judgment debtor is entitled. Thus, the interest of a lessee may be sold on execution against him (Otis v. Wood, 3 Wend. 498). The interest of a mortgagor in possession may be sold ; otherwise, when the mortgagee has taken possession, although the mortgagor has not lost the right to redeem (Madison v. Baucus, 1 N. Y. 295; Hall v. Cornly, 11 Id. 501; Gloulet v. Asseler, 23 Id. 225).
    IV. The exception, in the case of a pledge, to the rule stated in the last point is made by special statute (3 Rev. Stat. 5th ed. 645, § 20). At common law the interest of the pledgor could not be levied upon or sold (Stief v. Hart, 1 N. Y. 20).
    V. The said pretended sale was irregular and void, for the reason that no sufficient levy had been made, and the goods were not lawfully in the sheriff’s possession. “What constitutes a levy,” says Chief Justice jSTblson, “ according to the practice in this State, has been very well settled, and is not now open to .dispute. The officer must take actual possession, and the goods should be subject to his disposition and control” (Ray v. Harcourt, 19 Wend. 497). There must be a sufficient levy before there can be a sale (Butler v. Maynard, 11 Wend. 551).
    VI. The said pretended sale was also irregular and void, for the reason that the property was not within the view of those attending the sale (3 Rev. Stat. 648, 5th ed. § 37).
    VII. The said pretended sale was also irregular and void, for the reason that the property was not offered for sale in such lots and parcels as were calculated to bring the highest price (1b.). In the case at bar, the pretended sale was so conducted as absolutely to exclude any competition and to prevent the property from bringing an approximation to its value, and is a vindication of the wisdom of the legislature in the enactment of the provision cited, as well as of the rule at common law.
    VIII. On the ground of gross inadequacy of price alone the order appealed from could properly be sustained. It appears that property which cost, within two years, from twenty-five thousand dollars to thirty thousand dollars, was sold for eight hundred and fifty dollars (Bixby v. Mead, 18 Wend. 611).
    IX. The said pretended sale was also collusive, and voidable on that ground. The purchaser was acting under the advice and direction of the plaintiff’s attorney, and appears to have taken, personally, no interest in the matter. Although the defendant’s attorney was in correspondence with the sheriff’s deputy holding the execution, the fact of this pretended levy and intended sale was never communicated.
    X. The said sale was also in violation of the stay of proceedings effected by operation of law, upon the defendant’s having taken an appeal and given the requisite undertaking for that purpose. The undertaking was actually sufficient to effect a stay (Code, §§ 335, 341; Rich v. Bateman, 2 Code R. 63). At all events it could not be disregarded (Parfitt v. Warner, 13 Abb. Pr. 471).
   By the Court.—Freedman, J.

The questions arising upon this appeal, were properly determined at special term. The sale, as conducted by the sheriff, was a violation of the statute in the particulars named, and no tide passed to the purchaser (Sheldon v. Soper, 14 Johns. 352; Cresson v. Stout, 17 Johns. 116; Warring v. Loomis, 4 Barb. 484; Stevens v. Eno, 10 Id. 95).

Every court of record, unless restrained by positive enactment, has the power, on motion, to vacate its judgment or proéess to prevent a perversion thereof or to frustrate oppression. This power is constantly exercised by courts of equity, to relieve against sales of real property, and no reason can be assigned why it should not exist to prevent injustice flowing from an irregular and void sale of personal property.

We concede that its exercise calls for the employment of great caution and discrimination at all times, and in cases of personal property it should be exercised in extreme cases only, where no substantial right can be prejudiced by a summary examination.

In this case the power was properly exercised for the reasons stated by the learned chief justice at special term (see p. 53, ante).

The order should be affirmed, with costs.

Van Vorst and Speir, JJ., concurred.  