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Rogers agt. Marshall.

for the satisfaction of a lien filed by said Maginn, under the N. Y. mechanics' lien law.

The premises were afterwards sold by the sheriff and bought by Singer, the holder of the second mortgage.

It is shown by the affidavit of the defendant, Mrs. Marshall . that almost immediately after the sale, Singer, with the knowledge and concurrence of Rogers, moved into the premises and commenced there the business of keeping a public house, and continued to occupy the premises up to the time of his death.

Rogers removed from the premises and went to the Second avenue, where he opened a public house, and never returned to the premises bought by Singer.

Singer, instead of taking a deed from the sheriff immediately, as he was probably entitled to do, took merely a certificate of his purchase, as in ordinary sales under executions. In about a year thereafter Singer died, not yet having received his deed.

Singer left him surviving his sister, Mrs. Prevost, his only next of kin and heir at law, who immediately took undisputed possession of the premises in question, and of all the effects of her deceased brother, including the aforesaid mortgage.

She afterwards received a deed of the premises from the sheriff.

Mrs. Prevost died in 1864, leaving all her property to her daughter, Mrs. Marshall, one of the defendants.

The above facts are all sworn to, in the most positive manner, by Mrs. Marshall, and are wholly uncontradicted.

Rogers died in 1860, some five years after the purchase by Singer, during the whole of which time Singer and his family had held the possession of the property undisputed.

Mrs. Marshall has since (nine years) remained in actual occupation of the premises. She is engaged there in keeping a public house, by which she supports a large family.

The plaintiff, who is the only heir at law of Lewis C.

Rogers agt. Marshall.

Rogers, and was an infant at the time of the death of his father, now, after fourteen years of undisturbed possession by the Singer family, brings this suit to recover back the property.

A motion for an injunction and receiver was made upon the complaint, snpported by an affidavit of James Maginn, and an order was made enjoining Mrs. Marshall from collecting rents of the premises, and appointing a receiver, which order, if continued, will break up her business, and throw herself and children in the street.

I. The allegations of the complaint not being sworn to positively are not to be regarded as any proof of the facts alleged therein. (Bostwick agt. Elton, 25 How., 362.) The same may be said of the affidavit of the plaintiff, which is qualified by the admission that he "knew nothing of the facts above set forth till recently." Of course, he can have no personal knowledge of them. The only proof, therefore, upon which the injunction, order, &c., rests, is the unsup ported affidavit of Maginn. This affidavit relates to a matter that occurred fourteen years ago. The statement of Maginn is denied in the most positive manner by Mrs. Marshall, the defendant. She lived with her uncle, Mr. Singer, at the time of the transaction, and was personally cognizant of what she swears to.

II. There is no precedent for the appointment of a receiver in a case like the present. The plaintiff might as well ask for a receiver in an action of ejectment. (Willis agt. Corlies, 2 Edw., Ch. 281; 3 Id., 304; Id., 312; Id., 246; People agt. Davidson, 4 Barb., 112.)

III. An injunction or receiver is never granted when the whole equity of the complaint is denied. (18 How., 186, et passim.)

IV. But assuming the sale to Singer to be void, then Singer and his representatives, being mortgagees in possession, cannot be disturbed without a redemption.

Rogers agt. Marshall.

GEORGE W. WINGATE, for Respondent.

It appears by the papers upon which the order appealed from was granted:

1. That the plaintiff is the owner of the premises unless his title has vested in the defendant, Mary Marshall, by virtue of the sheriff's deed, given upon the alleged foreclosure of the Maginn mechanics' lien.

2. That this lien had been paid and satisfied by the plaintiff's ancestor, prior to any sale thereunder, and that the subsequent proceedings were wholly unauthorized by the plaintiff therein.

3. That the deed under which the defendants claim was confessedly irregular.

4. That there was no transfer of possession after sale, and that this deed was not recorded until after the death of the plaintiff's ancestor, and the whole matter was kept concealed from his heirs.

5. That the defendants claim to be mortgagees in possession, although pleading the statute of limitations in opposition to the plaintiff's right to redeem.

6. That it is conceded that the defendants are irresponsible, that they are collecting the rents and profits, which they are unable to refund, and which will be wholly lost unless they are restrained from so doing, and that they have permitted the premises, during their occupation, to fall into a ruinous and dilapidated condition, which is constantly growing worse, so that unless the same are placed in the hands of a receiver the plaintiff will suffer irreparable damage.

First. The proceedings upon the foreclosure of Maginn's lien and the deed given by the sheriff thereunder, under which the defendants claim title, did not divest the title of Lewis C. Rogers, the plaintiff's father, to the premises described in the complaint.

(a.) It will be recollected that the foreclosure of a me chanic's lien is a statutory proceeding in derogation of the

Rogers agt. Marshall.

common law, and of an extraordinary nature, and that unless the statute is strictly complied with, the owner's title is not loses jurisdiction. (Roberts agt.

divested, and the court Fowler, 3 E. D. S., 632.)

No title passes in a statutory pro

ceeding unless to be proven to be regular. No intendment in its favor can be made. (Sharp agt. Speir, 4 Hill, 76; Striker agt. Kelly, 2 Denio, 323.)

(b.) The plaintiff, in the suit to foreclose the lien in question, having settled with the owner of the premises, and given a receipt in full, his lien ceased to be a lien, and was dissolved, which immediately put an end to the whole proceeding, and rendered all subsequent proceedings void. The lien is the foundation of the whole proceeding. It being strictly a proceeding in rem. (Conkright agt. Thomson, 1 E. D. S., 663; and see Beals agt. Congregation of B'nai Jeshurun, Id. 654.) The lien must continue until judgment is recovered and payment enforced by legal proceedings. (Randolph agt. Leary, 3 E. D. S., 639; Jackson agt. Morse, 18 Johns., 441, and cases infra.) Besides, the subsequent proceedings having been without the knowledge or consent of the lienor, they were unauthorized and void. The defendant's statements are not only mere supposition and a repetition of the answer, but are directly contradicted by the lienor. At the same time they admit that the lien was paid prior to the sale, and as the subsequent proceedings they set up are irregular on their face, they are an admission that the title of the plaintiff's ancestor has never been divested.

(c.) The certificate of sale given by the sheriff to Singer, and the deed subsequently executed by him to the administrators of the latter, were irregular and unauthorized in law, and no title passed under them.

I. The making of a certificate of sale upon a foreclosure of a mechanic's lien as upon a sale on execution is erroneous. (Smith agt. Corey, 3 E. D. S., 642.) The proceedings for the sale being special and different from those on execution, the provisions of the Revised Statutes, as to sales upon exe

Rogers agt. Marshall.

cution, do not apply, and the sheriff should execute a deed to the purchaser, not a certificate of sale. (Randolph agt. Leary, 3 E. D. S., 637.)

II. As the provisions of the Revised Statutes, as to sales on execution, (2 Eds. Rev. Stats., p. 388.) providing for the execution of a certificate of sale, and allowing a redemption, do not apply to a sale on the foreclosure of a mechanic's lien, (see cases supra,) the accompanying provisions ( 2 Ed. Rev. Stats., pp. 386, 387,) allowing the sheriff, in case of the death of a purchaser and holder of the certificate of sale on an execution "to execute a conveyance to his executors or administrators" have no application either. These provisions are confined entirely to sales on execution, and the deed is to be given to the executor or administrator, and not to the heir, in consequence of the right of redemption given to the debtor and to creditors, which right does not exist in the case of a mechanic's lien. In fact, in the case of a mechanic's lien no execution can be issued at all (Randolph agt. Leary, 3 E. D. S., 640). But the salemust be on a certified copy of the judgment (Allthurse agt. Warren, 2 E. D. S., 657). The deed to the administratrix and administrator of John Singer, thus being entirely unauthorized (see cases supra) it was void, and is no defence to this action. The fact that the administrator and administratrix subsequently conveyed to the heir, passed nothing if the original deed to them was illegal; "the fountain could rise no higher than its source." A sheriff's deed cannot be made operative except according to its terms (Mason agt. White, 11 Barb., 173). A sheriff's deed is null and void if there was not a subsisting power in him to make it, and a payment to defeat the deed may be proved by parol. (Stafford agt. Williams, 12 Barb., 240; Jackson agt. Morse, 18 Johns., 441; Jackson agt. Anderor, 4 Wend., 474; Jackson agt. Roberts Exrs., 11 Wend., 422.

Second. The case, as presented on the papers, not only shows that there was no legal sale but that the obtaining

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