Winterson v. Hitchings
New York Court of Common Pleas
Appeal from special term. Action by Maria L. Winterson against Hector M. Hitchings and John B. Sexton, as late sheriff of the city and county of New York, to restrain the ex-sheriff from executing a deed of land sold under an execution, and to set aside the sale. A demurrer to the complaint was overruled (30 N. Y. Supp. 260), and defendant Hitchings appeals.
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Appeal from special term. Action by Maria L. Winterson against Hector M. Hitchings and John B. Sexton, as late sheriff of the city and county of New York, to restrain the ex-sheriff from executing a deed of land sold under an execution, and to set aside the sale. A demurrer to the complaint was overruled (30 N. Y. Supp. 260), and defendant Hitchings appeals. This was an action in equity to obtain restitution of property sold under ■execution upon a judgment which was reversed. The appellant, Hitchings, was the purchaser at the sheriff’s sale, and was also the assignee of the judgment and the…
1Opinion of the CourtDaly, C. J.
The demurrer of the purchaser and assignee questions the right of the plaintiff to recover in any event, or to recover without a tender or offer to pay the amount due upon the second judgment. The demurrer was overruled at special term, and from such decision this appeal is taken. As assignee of the judgment, the purchaser stands in the same position as the. judgment creditor would be. McJilton v. Love, 54 Am. Dec. 449; Reynolds v. Harris, 14 Cal. 667; Black, Judgm. § 955. If the purchaser had been a stranger to the record, his title would not’ be affected by the reversal of the judgment.…
2Cases cited4 opinions
- Galpin v. PageSupreme Court of the United States · 1874
- Wood v. Jackson ex dem. GenetCourt for the Trial of Impeachments and Correction of Errors · 1829
- Reynolds v. HarrisCalifornia Supreme Court · 1860
- Simonds v. CatlinNew York Supreme Court · 1804
3Cited by1 opinion
- Winterson v. HitchingsNew York Court of Common Pleas · 1895