Webster v. Haworth

Murray, C. J., delivered the opinion of the Court—Terry, J., concurring. This action was brought under the two hundred and twenty-fourth and two hundred and twenty-fifth sections of the Practice Act, for an alleged loss arising from the refusal of the defendant to pay for certain property purchased by him at sheriff’s sale. The answer admits the facts charged in the declaration, but alleges that the defendant was induced to purchase, through the misrepresentation of Ryer, the real party in interest, the sheriff being only a nominal party. The testimony shows that the property in question was sold at sheriff’s sale to satisfy a judgment of Ryer; that immediately before the sale took place, the defendant, through his attorney, inquired of Ryer, who was present, whether his judgment was the oldest lien on the land, and whether the purchaser at the sale would obtain a clear title to the same, free from all incumbrances. Ryer replied that his was the oldest attachment and judgment, and that the purchaser would take the property clear of all charge or incumbrance. Upon the faith of these representations, the defendant purchased; afterwards, it turned out that Ryer’s judgment was not, in point of fact, the oldest lien upon the lot sold, and that there were incumbrances upon it to more than twice its value. Ryer’s attachment was levied on the eighteenth of July, 1856. The one hundred and twenty-fifth section of the Practice Act provides that real property shall be attached by leaving a copy of the writ with the occupant thereof, and filing a copy, together with a description of the property attached, with the recorder of the county.

The return of the sheriff, filed in recorder’s office, shows that the attachment was levied on lot eleven, in block FT, and not lot eleven, in block M. This was afterwards corrected on application to the District Court, but before the correction was made other attachments had intervened.

It will hardly be necessary to enter into any argument to show that the first attachment could not bind property not described in the return of the officer, and that the subsequent attaching creditors were not postponed to the satisfaction of Ryer’s judgment. The case, then, turns upon the question whether Ryer is estopped by his declarations and representations made to Hyer, the attorney of the defendant.

In this view of the case, it is immaterial whether Ryer made such representations, knowing them to be false, or whether he was ignorant of the facts altogether. 1 Story’s Eq. Jur., § 193. It is sufficient, if they were untrue, and at the same time a material inducement to the purchase, and that the defendant acted [26]