
    Jackson, ex dem. D. Russell and others, against Croy.
    Parol evidence is inadmissible to show that paTt °f Pr6noses contained intended to be
    will ™?dbe dnClathe Tmistake'TÍ otu n TaTnot ■grantor. 7
    application6*4?! ejectmenttothe plaintiff’s lessor, to purchase the premises in question from him, affords * ^thecam^in„dcrP°Ifes 1 es*s°¿of the plain-
    THIS was an action of ejectment, for land, in Peter sburgh, . i . —. _ . Y « t i tried at the Rensselaer circuit, m June last.
    T The plaintiff gave in evidence a deed, dated 31st January, 1805, from Abraham Ten Broeck to Abel Russell, for the farm, of which the premises in question are part, and that Russell took possession under that deed, and continued in possession until June, 1811. The plaintiff also gave in evidence an ex-amplification of the record of a judgment in favour of Samuel Starr and Jacob Houghton, against Abel Russell, for 250 dollors of debt, and eight dollars damages, docketed in this court the 17th of October, 1807 : and a writ of fieri facias issued there-i i - rr n 7 v v on to the shenii of Rensselaer, and a deed from the sherift of that county, dated the 5th of June, 1811, to David Russell, one J’ 7 of the lessors of the plaintiff and the son of Abel Russell. The sheriff’s deed, after setting forth the judgment and execution, and the lands seised by virtue thereof, contained the following exceptions : “ Excepting one acre heretofore conveyed .by the said Abel Russell to Potter Maxan, on which the shop and dwelling house of the said Maxan now stands; and, also, except one acre conveyed to John D. Croy, on which the house and store of the said Croy now stands ; and, also, except the lot on which the house of A. H. Tift now stands, &c.; also, half an acre conveyed to D. M. Silliman ; also, half an acre conveyed to George Gardner, the 2d, on which his house now stands; also, except a small lot, about a quarter of an acre, adjoining to Silliman’s lot.”
    It appeared, from the testimony of Anthony Hoffman, who surveyed the land, that the premises in question did not fall within any of the exceptions in the sheriff’s deed, and that the premises in question were a part of the lands conveyed by Ten Broeck’s deed to Abel Russell, and are included in the sheriff’s deed to David Russell.
    
    It appeared, also, that, before the commencement of this suit, and before the defendant went into possession of the premises, he applied to David Russell to purchase them, and re-guested to have the refusal, whenever they should be sold ; and that the- defendant, before the commencement of this suit, disclaimed holding under David Russell. ■
    
      David Russell was present at the sheriff’s sale, and' stated that his father, Abel Russell, had sold certain lots, which he wished,to have excepted from the sale ; “ that it was not intended to sell, any part of the lands which liis- father, - Abel Rus¡sell, had soldand. the sheriff made'a similar declaration. 1 The sheriff testified, that certain exceptions, were made by him on the sale,'according to the direction's from David Rus* selli but, ■ whether.the premises’ .hi. question; Were among ' the exceptions, he did not know 5 he thought that the name of Griffis was mentioned as the "owner" of one of the excepted lots. There were ¡a number of bidders, and the'property was struck off to David Russell, the highest bidder, for 1,400 dollars. r A blank deed was then presented by David Russell, which was filled tip with .the name of the.piirchasfer and the consideration,, and executed by the sheriff, without- further-examination by-him, except to see that the execution was properly described, -V , v, . '■ ■
    It was -proved that, at the timé of the salé,' Jasper Griffié owned the lot excepted in the sheriff’s deed, described as being half an acre,, -Conveyed by Abel Russell to George' Gardner, the' 2d, and that Griffis. was then in possession of it." The defendant produced a deed, dated the 23d of October, 1810,. from -Abel Russell to Peter Griffis and Samitel Phillips, conveying an estate in fee, which included the premises in question ; and, also, a deed from Samuel Phillips to Jasper Griffis, dated the 23d of November, 1813, covering the premises in question. ■ ■ • •
    The judge charged the jury, that, in his opinion, the defendant had failed to impeach the sheriff’s deed,, pit the ground of mistake, or fraud; and that the plaintiff had shown á clear title in David Russell; and, besides, the defendant had, by repeated acts,, recognised David Russell as owner’ of the premises in question, sufficient, in his opinion,- to afford-' a strong presumption -that he had received possession from. him. Under this, ^charge of. the judge, the jury found-a- verdict for the plaintiff. ' V
    A motion was made to set aside the verdict, and for a new-trial. ■) "■
    
      
      C. Mitchell, for the defendant. 7
    
      Crary, contra.
   Yates, J.,

delivered the opinion of the court. The judgment given in evidence against Abel Russell, was docketed in 1807. The execution had regularly issued on it, so that the sale made by the sheriff, and the deed given by him, in June, 1811, to David Russell, vested the title to the premises in him. That title cannot be affected by the deed of Abel Russell, to Griffis and Philips, executed in October, 1810, being subsequent to the docketing of the judgment upon which the sheriff’s deed to David Russell is founded, unless that deed has been obtained from the sheriff under circumstances of fraud, which would render it void.

The paroi proof received on the trial, was not to explain any ambiguity in the sheriff’s deed, but is directly contradictory to it, and, therefore, inadmissible. There was no uncertainty as to what was conveyed by it. The premises in question were evidently included and described in the deed, and resorting to this sort of extrinsic testimony, to show that the premises ought not to have been included, is contrary to the established rules of evidence, in relation to instruments of this description. But admitting that the evidence could be received on the ground of fraud or mistake; it neither shows fraud nor imposition by Russell, one of the lessors, nor a mistake in the sheriff; for it does not appear that the premises were excepted at the sale. There is nothing stated explicitly on the subject. The sheriff declares he has n» di’stinc t recollection about it. He remembers that David Russell .stated, that his father, Abel Russell, had sold certain lots, which he wished to have excepted from the sale, and said it was not intended to sell any part of the land which his father had sold; but whether a memorandum, enumerating the excepted lots, was handed to him, or not, he does not remember. He recollects that certain exceptions were made by him on the sale, according to the directions he had received from David Russell; but whether the premises in question were excepted, he does not know. The manner of executing the deed, as stated by him, may -well have taken place, and still the whole be fair and bona fide. The sheriff might have read the whole deed, if he pleased; for he says he examined a part of the deed ; and because he did not examine the residue, can it be .tolerated, that the person ' V , . . - . . who drew and presented it must be subjected to the imputation of fraud upon,Mm ? This cannot be. We are bound to consithe-transaction to have, been conducted in good faith,,unless the..Contrary appears', ft is evident that no part of the testimony will warrant the -inferéti'ee that fraud was practised, by1 Russell. . - ,': , 1 . . .

The repeated acts of the defendant, recognising the plaintiff’s title, by applications to purchase from him, both before and. after lie, entej-ed into, possession of the premises.,, afforded the strongest reason to presume- that the defendant was iti posses-, sion under David Russell. We are accordingly Of ppinion that, the plaintiff ought to have judgment»

Judgment fat the plaintiff,  