
    Yates vs. St. John & Van Alstyne.
    A purchaser of personal property at sheriff’s sale cannot maintain an action of trover against a plaintiff who subsequently causes the same property, to be sold by virtue of a judgment and execution in his favor, without proving the judgment as well as the execution under which his purchase was made.
    This was an action of trover, tried at the Montgomery circuit in May, 1831, before the Hon. Eseic Cowen, one of the circuit judges.
    The plaintiff, Evert Yates, proved that in May, 1830, he purchased at a sheriff’s sale, by virtue of three executions against the goods, &c. of Cristopher E. Yates, two fields of’ winter wheat and one field of rye then growing, and also cattle, farming utensils, &c. and that after the grain was harvested and put into the barn, to wit, in November, 1830, Van-Alstyne, by the direction of St. John, sold the same at public auction, together with the other articles of property purchased by the plaintiff. The plaintiff, after proving the value of the property, rested. The defendants proved a judgment in favor of St John, against Christopher E. Yates, for #500, rendered in July, 1830, and an execution issued thereon and delivered to Van Alstyne, a deputy sheriff under which he alleged he sold the property ; and insisted, after such proof, that the plaintiff was not entitled to maintain his action, unless-he proved the judgments upon which the executions issued,. under which he claimed title. The judge being of that opinion, and the plaintiff not exhibiting such proof, a nonsuit was directed to be entered ; which was now moved to be set aside.
    
      D. Cady, for the plaintiff.
    In an action by the sheriff against the defendant in the execution, it would not have been necessary to have shown the judgments under which the sale was had, nor was it necessary in this case, where the suit was brought by a purchaser who stood in the place of the sheriff, against the defendants who claimed under the original defendant, by title acquired subsequent to the sale at -which the plaintiff acquired his rights. In support of these positions he cited 2 Johns. R. 46 ; 6 id. 195; 7 id. 32 ; 12 id. 395; 16 id. 106; W. Black. R. 69 ; 1 Ld.Raym. 730 ; 6 Bacon’s Abr. 589; 8 Com. LawR. 298.
    
      M. T. Reynolds, for the defendant.
    In the cases cited, the action was either by the officer, or against the defendant in the execution, where it is conceded it is not necessary to show the judgment. But this rule has never been extended to a purchaser who in the case of real estate always is required to show a judgment, and no reason can be assigned why, when the property is personal, he should not be held to the same strictness. Besides, here the action is against third persons, showing a perfect title by judgment and execution, which should prevail until a better and elder title is shewn.
   By the Court,

Savage, Ch. J.

The only question is whether it was necessary for the plaintiff to produce the judgments to support the executions under which he purchased ? The cases referred to show, that in trespass against an officer for taking goods in execution, brought by the defendant in such execution, the officer need not prove a judgment; but in trespass by a stranger he must. 1 Ld. Raym. 733. 6 Johns. R. 196. 5 Burr. 2633. In Doe v. Smith, 2 Starkie’s N. P. Cas. 175, it was held in ejectment that a lessor who purchases at sheriff’s sale upon judgment and execution in his own favor, must show the judgment as well as the execution. And in Glasin v. Eve, 8 Com. Law R. 298, it was decided that a plaintiff who made title to goods by means of an execution jn j^s own favorj jn a su;t against assignees, must show the judgment as well as the execution. The judgment is a part of the title, and should be shown. It is true that as against , „ . . , ... j the defendant in the execution, it is not necessary to produce the judgment, because he is the party to the record. It is contended that all who claim under him stand in the same situation. This last proposition seems to have been denied in the case last cited. The execution may have been prima facie sufficient, hut when the defendant St. John showed himself a bona fide purchaser of property in possession, as I infer, of the former owner, the plaintiff was called on to show a complete title. The defendants in this suit, I apprehend, do not stand precisely in the situation of the defendant in the execution, in relation to the plaintiff. These parties both claim the property as once owned by C. E. Yates, and claim adversely to each other. The defendants in this suit are neither parties nor privies to the execution under which the plaintiff purchased.

Motion to set aside nonsuit denied.  