Wallace v. . Swinton
New York Court of Appeals
Appeal from order of the G-eneral Term of the Supreme Court, in the second judicial department, affirming an order of Special Term, which set aside a verdict for plaintiff and granted a new trial. This was an action of ejectment, brought to recover possession of certain premises situate in the town of Deer Park, Orange county. The plaintiff claimed title by virtue of a sale under two executions, issued upon judgments against one Samuel Fowler.
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Appeal from order of the G-eneral Term of the Supreme Court, in the second judicial department, affirming an order of Special Term, which set aside a verdict for plaintiff and granted a new trial. This was an action of ejectment, brought to recover possession of certain premises situate in the town of Deer Park, Orange county. The plaintiff claimed title by virtue of a sale under two executions, issued upon judgments against one Samuel Fowler. After the rendering of the judgments, and before the executions were issued, Fowler died, in 1861, seized of the lands in question. After his death,…
1Opinion of the CourtAllen, J.
The plaintiff must recover upon the strength of his own title, and can. take nothing by reason of any defects in that of the defendant. It may be assumed for all the purposes of this appeal that the questions sought to be made in respect to the regularity and validity of the proceedings before the surrogate, and of his order granting leave to issue execution are not open to the defendant, but can only be raised and taken by the personal representatives of the judgment debtor over whom the surrogate had jurisdiction. The question in the Marine Bank of Chicago v. Van Brunt (49 N. Y., 160) arose…
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