
    Swan vs. Saddlemire & Wood.
    NEW-YORK,
    May, 1832.
    
      Case lies against the plaintiff and defendant in a judgment, for fraudulently setting up the judgment as unsatisfied, when in fact it is paid, causing an execution to be issued thereon, and a sale to be had of land on which the judgment when in force was a lien, where such land, subsequent to the judgment, was conveyed by the defendant, and passed into the hands of a third person.
    It is not necessary in such action that actual specific damage should be shewn 5 if it appear that the unlawful acts of the defendant occasioned trouble, inconvenience, or expense to the plaintiff, the action is sustained.
    Where the plaintiff in such action derives his title from one of the defendants, the defendants are not allowed to allege that no interest in the land was conveyed to the plaintiff by the deed under which he claims; nor can they avail themselves of a variance between the judgment and execution.
    
      It seems, that an execution issued upon a judgment which has been paid and satisfied is absolutely void, and not merely voidable, and that a purchaser under such execution acquires no title.
    This was an action on the case, tried at the Albany circuit in September, 1830, before the Hon. James Vanderpoel., one of the circuit judges.
    The defendants were charged in the declaration with combining together to defraud the plaintiff, by setting up a judgment in favor of Wood against Saddlemire, which had been paid and satisfied, sued out an execution thereon, and selling a farm held by the plaintiff by conveyance derived from Saddlemire since the rendition of the judgment on which the execution issued. The defendants pleaded the general issue. On the trial, the plaintiff read in evidence a quit claim deed from Saddlemire to one Vrooman, bearing date 3d March, 1824, whereby, for the consideration of $400. Saddlemire released 60 acres of land to Vrooman, and also a quit claim dfeed of the same premises from Vrooman to the plaintiff, the consideration of which was $350.' The plaintiff then proved the judgment rendered in a justice’s court in favor of Wood against Saddlemire for $42,57, a transcript of which was filed in the clerk’s office of the county of Albany on the 27th April, 1820; also a written consent signed by Saddlemire, bearing date 14th July, 1828, that execution issue upon such judgment without scire facias, in which consent the amount of the judgment was stated to be $42,50, and an execution issued upon such judgment, tested on the I4th July, .1828, stating the judgment to have been rendered for $42,50. The execution was delivered to a deputy of the sheriff of Albany by Wood, who directed the deputy to levy the same on the 60 acres of land bought by the plaintiff of Vrooman, which was done accordingly; and on the 6th December, 1828, the land was sold by virtue of the execution at public vendue for $92, to one Gage, to whom the sheriff executed a certificate of sale. The plaintiff proved the admissions of both Wood and Saddle-mire, made previous to the sale in December, 1828, that the judgment, on which the execution had been issued, was paid, and satisfied. The value of the 60 acres was at least $300. This suit was commenced in October, 1829. The plaintiff having rested, the defendant moved for a nonsuit, on the grounds of the variance between the judgment and execution, that the evidence did not make out a cause of action, and that the sale being under a satisfied judgment, was wholly void. The judge directed a nonsuit to be entered ; the plaintiff moves to set it aside, and for a new trial.
    
      A. Taber, for plaintiff.
    The variance between the judgment and execution was amendable. 5 Johns. R. 89,100. 4 Wendell, 462. It would be unavailable to the plaintiff in this cause in an action against him by the purchaser; and at all events, the defendants being the actors in the suing out of the execution, will not be allowed to object the variance to protect themselves from responsibility. The purchaser at the sheriff’s sale would hold the land, notwithstanding that the judgment was satisfied. 1 Cowen, 622, 643, 4. The defendants having been guilty oí a wilful wrong, which caused damage to the plaintiff, are responsible in this action. The sale of the land embarrassed the plaintiff’s title so that he "could not have sold it for its value; he was obliged to redeem it by paying the purchase money; on failing to do so, he would have lost all right to it. But were it otherwise, should the sale under a satisfied judgment be considered void so as not to affect the title, the plaintiff, notwithstanding, is entitled to his action. It is not necessary in such cases that actual injury should be shewn; it is enough that the plaintiff has been disturbed in the possessjonan(j enjoyment of his property by the unlawful acts of the defendants; the law will imply injury. Ash v. Burdnel, Cro. Jac. 255. Hunt v. Dowman, id, 478. Jacob’s Law Dict. tit. Action, II. 3 Black. Comm. 123. Yates v. Joyce, 11 Johns. R. 136. Daniel v. Daniel, 7 Mass. R. 115.
    
      M. T. Reynolds, for the defendants.
    Admitting that a variance between a judgment and execution in a court of record is amendable, the execution in this case being issued on a justice’s judgment docketed in the county clerk’s office, there is no court or officer who has the power to amend it; and being unsupported by a judgment, it is a nullity. The plaintiff shewed no cause of action. He did not prove that he had any interest whatever in the land sold; the deed of quit claim from Vrooman to him conferred no title, nor was it shewn that Saddlemire, under whom Vrooman held, ever had title to the land; not even a possessory title was shewn, either in Saddle ■ mire, Vrooman or the plaintiff. No injury was sustained by the plaintiff by the alleged wrongful acts of the defendants ; the sale being under a satisfied judgment, was void, 5 Wendell, 240 ; 6 id. 367; it conferred no title upon the purchaser, and the plaintiff in the execution is liable for the purchase money. A purchaser under a power, purchases at his peril ; if there be no subsisting power or authority, to sell, no title is acquired. 4 Wendell, 474. Consequently no injury was sustained. Fraud without damage gives no right of action.
   By the Court, Sutherland, J.

The nonsuit mnst have been granted, either upon the ground of the variance between the judgment and execution, or else upon the general ground that the sale was a perfect nullity, by which the plaintiff could not have been injured, and for which therefore no action would lie; for, independently of these considerations, the evidence certainly was sufficient to go to the jury.

It was urged on the argument, on the part of the defendants, that there was no evidence to shew that the plaintiff had any interest in the land attempted to be sold. The evidence upon this subject is, that Saddlemire, on the 3d March, 1824, conveyed the premises to one Vrooman by a quit claim deed for the consideration of $400, and that Vrooman, in November following, conveyed them also by a quit claim deed to the plaintiff for the consideration of $300. It is not expressly proved that either Saddlemire or Vrooman, or the plaintiff, was in the actual possession of the farm, or that Saddlemire ever had any title to it. It is not however for the defendants, after having sold this farm as the property of Saddlemire, to deny that he ever had an interest in it; and as between these parties, and under the circumstances of this case, the legal intendment, I think, is, that a valuable and beneficial interest passed under these conveyances, and that the parties respectively took possession under them.

The variance between the execution and the judgment did not affect the validity of the sale under it. Such a variance, where the execution issues from a court of record, is amendable at any time, as well after as before the sale, 2 T. R. 727, 5 Johns. R. 100, 2 Dunlap, 774, and cases there cited; and cannot be taken advantage of on a trial for a recovery of land sold by virtue of the execution. 4 Wendell, 462. In Jackson, ex dem. Hunter v. Page, 4 Wendell, 585, this doctrine was applied to an execution issued upon a justice’s judgment) the transcript of which had been filed in the county clerk’s office: precisely in this respect like the case at bar. There was a variance in that case of ,TW between the judgment and execution under which the plaintiff derived title. We held that the title of the purchaser was not affected by it. I delivered the opinion of the court; and it is there said that it sufficient-13" appeared that the execution given in evidence was in fact issued upon the judgment in question, and that the sale was made under that judgment and execution. The object in proving the judgment and execution was' to shew a competent authority for the sheriff to sell: and the rights of a purchaser at such sale ought not to be affected by a slight variance between the execution and the judgment, which it would be a matter of course to amend upon application to the court, if the execution had issued from a court of record. The variance in no respect affects the force or validity of the execution or sale under it, if it be admitted that it issued upon the judgment, and conforms to it in all essential particulars. The actua) amendment is of no importance. The variance will be disregarded, no matter what court the process issues from, if, according to established practice of this court, its process would be amendable under similar circumstances. 10 Johns. R. 386. 18 id. 10. Jackson v. Streeter, 5 Cowen, 529. The variance in this case therefore did not authorize the nonsuit. But if in ordinary cases this objection could be taken by a defendant in a hostile execution, it could not be taken by these defendants, both of whom must be considered as actors in the issuing of the execution in this case.

It is not necessary, in order to support this action, to maintain that the purchaser under the sale complained of acquired a good title to the property. In this special action on the case, if it appear that the unlawful acts of the defendant occasioned trouble, inconvenience, or expense to the plaintiff, the action is sustained, and the amount of damages must be determined by the jury. 1 Chitty’s Pl. 133, 4. Now a man’s property cannot be sold under color of legal process, without subjecting him to some inconvenience or expense, and if it be real estate, without, to a greater or less extent, throwing a cloud upon his title. This is damage per se, and the law ought so to regard it, when it is produced by the wilful and fraudulent act of a tort-feasor. The case of Hunt v. Dowman, Croke Jac. 478, shews that actual specific damage need not, in all cases, be shewn, in order to maintain this action, but t hat the law will in some cases imply damage without its being proved. That was an action on the case, by a reversioner in fee against the lessee for years, for disturbing him, when he came to the house to see if any waste was committed therein, or any defect in the repairs, as that he could not enter and examine the waste, if any. The plaintiff recovered, and it was moved in arrest of judgment, 1. That it was not shewn that any waste had been committed, and of course it did not appear that plaintiff had sustained any damage by being prevented from examining the premises; but the whole court held that the action, though of the first impression, was maintainable ; that the reversioner having a right to enter and view the premises, a disturbance in his entrance and view was an injury for which the law gave him a remedy by this action, Phillybrown v. Rylan d, 1 Strange, 624. So an action one case will lie for tearing the seal off a deed, without shewing that it was the seal of the grantor, or that the deed thereby lost its force. Ash v. Burdnel, Croke Jac. 255. Comyn’s Dig. tit. Action on the Case for Misfeasance, a. 6. Godb. 200. 7 Mass. R. 135. Yates v. Joyce, 11 Johns. R. 140. In Mc-Guinty v. Herrick, 5 Wendell, 243, it was held, that trespass would lie against a party or magistrate, who should wantonly and intentionally take out, or issue process, upon apaid judgment; that the justice in such a case would have a jurisdiction of the process; that an execution upon a paid judgment was not a regular process. 2 Johns. Cas. 49. 7 Cowen, 249. And in Lewis v. Palmer, 6 Wendell, 368, a justice who issued a second execution, after the first was satisfied, was held to be a trespasser, though the second execution was issued through the false representation of the plaintiff that the first was lost.

I am strongly inclined to the opinion that an execution issued upon a judgment which has been paid and satisfied, is to be considered absolutely void, and not voidable, and that the purchaser under such execution would acquire no title. Woodcock v. Bennett, 1 Cowen, 711. 1 Johns. Cas. 154. 15 Johns. R. 443. 16 id. 571. 9 Mass. R. 142. 16 id. 63. 18 Johns. R. 441. Jackson v. Cadwell, 1 Cowen, 622, and authorities there cited. Jackson v. Anderson, 4 Wendell, 474. It is a general rule that a purchaser under a power, purchases at his peril. If there was no subsisting power or authority to sell, no title is acquired. But I abstain from a definitive opinion upon this point, because I do not deem it necessary to the decision of this motion; and it may hereafter directly arise between other parties connected with this transaction.

Nonsuit set aside, and new trial granted.

[ The remainder of the cases of May term in next volume.]  