Dwight's Case.

was, that he had been advised by the attorney for the plaintiffs to purchase the land in question, but that after the sale he had discovered a previous conveyance by Tallmadge of the land so sold.

Mr. Justice Barnard, at chambers, directed the entry of an order vacating the returns and satisfactions, together with the sale and all proceedings thereon; and authorizing the plaintiff's to issue new executions for the amount of the judgments.

From this order, the defendant Tallmadge appealed to the general term.

Elbridge T. Gerry, for the appellant.-I. Not being a party to any of these suits, Dwight was a stranger to the judgments, and not entitled, on motion, to impeach the regularity of, nor to move to set aside, proceedings thereon. 1. The case is widely different from that of a purchaser under a foreclosure-sale; for there, specific property is pointed out by the decree of the court. 2. But a purchaser at a sheriff's sale is not entitled to any such favor; and as the present motion was not merely to set aside the sale, but also the executions, the court, at special term, erred in entertaining such a motion by him. (Berry a. Riley, 2 Barb., 307; Smith a. McGowan, 3 Ib., 404; Pierce a. Alsop, 3 Barb. Ch., 184; Crocker on Sheriffs, § 491; Price a. Shelby Circuit, Hardin (Ky.), 254; Weisiger a. McClure, 5 J. J. Marsh., 292; Phillips a. Coffee, 17 Ill., 154; Hitchcock a. Roney, b., 231; Wallop's Executors a. Scarburgh, 5 Gratt., 1; Nuckols a. Mahone, 15 Ala., 212; Gridley a. Duncan, 8 Sm. & Marsh., 456; Hutchinson a. Greenbush, 30 Maine (17 Shep.), 450; Blair a. Greenway, 1 Browne (Pa.), 218.) 3. In a particular instance, a purchaser at a sheriff's sale has a remedy by statute-not on motion. (2 Rev. Stat., 375; 3 lb., 5 ed., 658, § 97.) 4. The consent of the plaintiffs' attorney to the motion does not improve Dwight's status. (Laws a. Thompson, 4 Jones (N. C.), 104.)

II. By the terms of the sale, Dwight acquired only "the right, title, and interest" of Tallmadge in the land sold; and the rule is settled that, on such sale, the maxim caveat emptor applies. (2 Rev. Stat., 373; 3 Ib., 5 ed., 655, § 78; The Monte Allegre, 9 Wheat., 616, 647; Stafford a. Williams, 12 Barb., 240, 243; Homesley a. Hogue, 4 Jones (N. C.), 481;

Dwight's Case.

Flynn a. Williams, 1 Ired., 509; Reed a. Kinnaman, 8 Ired. Eq., 18; Del. & Lack. R. R. Co. a. Blair, 4 Dutcher, 139; Hensley a. Baker, 10 Missouri, 157; McLouth a. Rathbone, 19 Ohio, 21; Creps a. Baird, 3 Ib., N. S., 277; O'Neal a. Wilson, 21 Ala., N. S., 288, 295; Lang a. Waring, 25 Ib., 625; Starke a. Harrison, 5 Richard's (S. C.), 7; Harth a. Gibbes, 3 Ib., 316; Andrews a. Murphy, 12 Ga., 431; McWhorter a. Beavers, 8 Ib., 300; Rodgers a. Smith, 2 Carter (Ind.), 526; Vest a. Weir, 4 Blackf., 135.)

III. Dwight seeks to overthrow this rule, and to avail himself of his own folly, in not ascertaining the facts before purchasing. 1. He never caused any search for prior conveyances to be made. 2. He makes no excuse for his carelessness, and is not entitled to favor. (Biddle a. Moore, 3 Penn., 161.)

Albert Comstock, for Dwight, opposed.-I. The objections to the right of Dwight to move in the action are of a technical and preliminary nature, and the motion having been heard on the merits, they cannot now be considered. (Main a. Pope, 16 How. Pr., 271; Roosevelt a. Dean, 3 Cai., 105; S. C., Col. & C. Cas., 460.)

II. Besides, the right of any party to an action to ask relief by a summary application therein, and in no other way, against the purchaser, is indisputable; that the purchaser should have the right in a similar manner to apply, seems natural, just, and correlative. (Brown a. Frost, 10 Paige, 243; Requa a. Rea, 2 Ib., 339; Darvin a. Hatfield, 4 Sandf., 468; Lents a. Craig, 13 How. Pr., 72; King a. Morris, 2 Abbotts' Pr., 296.) A creditor certainly has. (May a. May, 11 Paige, 201; Nicholl a. Nicholl, 8 1b., 349.)

III. But beyond elementary principles, authorities for vacating judicial sales in behalf of purchasers, and others aggrieved on the ground of mistake, &c., are numerous; and sheriffs' returns on executions have been vacated, and new executions ordered to issue, for reasons similar to those here urged. (Hoppock a. Conklin, 4 Sandf. Ch., 582; American Ins. Co. a. Oakley, 9 Paige, 259; McGown a. Wilkins, 1 Zb., 120; Williamson a. Field, 2 Sandf., 533; Suydam a. Holden, in Court of Appeals, Howard's Code of 1859, 440.)

IV. The maxim caveat emptor does not apply to Dwight's

Dwight's Case.

prejudice within the ruling of the authorities referred to; and the statutory provisions referred to by the appellant's counsel are not conclusive as to the manner of seeking, or nature of the relief, for the action by the purchaser must be in the original suit. (3 Rev. Stat., 5 ed., 658; Nicholl a. Nicholl, supra.)

BY THE COURT.-CLERKE, J.-In the Ontario Bank a. Lansing (2 Wend., 260), on the sale of the property under a fi. fa., the plaintiff inadvertently bid a sum less than the amount of his execution, and the sale on his application was set aside. Again in Mulks a. Allen (12 Ib., 253), the plaintiff and deputy sheriff were deceived, as to the locality of the property, by the representations of the defendant; in consequence of which the plaintiff bid $800 for it, when it was not worth more than $150; it was struck off to him, and on motion a resale was ordered. There are other cases, no doubt, in which the court refused to interfere, either on the ground that junior judgment-creditors had acquired rights, or that a court of equity was the proper tribunal to grant relief. But neither of these grounds apply to the present case. It resembles the case of Mulks a. Allen, where the purchaser was deceived by the representations of the defendant as to the locality. Here the purchaser was deceived, to be sure, by the misrepresentations of the plaintiff's attorney; but the misrepresentations were equally mischievous in the one case as in the other. They induced the purchaser to do what he otherwise would not have done. The purchaser in Mulks a. Allen was not obliged to rely on the misrepresentations any more than in this case; he could have obtained correct knowledge as to the locality of the property by further inquiry; but still the court relieved him from the purchase.

As to the objection that the person making this application is not a party to the actions in which the executions were issued, if it is at all proper to consider that objection now, I think it should not be sustained. Parties, other than parties to suits, are frequently allowed to address themselves to the equitable consideration of courts of law; as, for instance, judgment-creditors in other actions against the same defendants, on motions to set aside fraudulent judgments. Besides, in analogy to applications like the present, in foreclosure and partition suits in courts of equity, there is no reason why a person, not a party

Oeters a. Groupe.

on the record, addressing the equitable summary jurisdiction of a court of law, should not obtain the relief to which he would be entitled if he was a party.

The order of the special term should be affirmed, with costs.

BARNARD, J., concurred.

INGRAHAM, P. J., dissented.

OETERS a. GROUPE.

New York Superior Court; General Term, November, 1862. APPEAL.-PROCEEDINGS WHERE NO CASE IS MADE.

Where, on an appeal being taken, no case is made or served, the respondent may, upon the cause being regularly called on the calendar, and the appellant being in default, take a judgment of affirmance. He is not bound to move to dismiss the appeal, or to strike it from the calendar.

Motion to set aside a judgment of affirmance taken by default.

The appellant had never served any case, nor obtained any extension of time to do so, although the time allowed for that purpose had long since passed. The respondent noticed the appeal for argument, put it on the calendar, and, the appellant not appearing when the cause was called, the respondent took a judgment of affirmance by default.

W. D. Craft, for the appellant.-This judgment is irregular. The appeal was not ready for argument until the case was settled, and the respondent's only remedy, in case of delay in preparing the case, was, by motion, on notice, to dismiss the appeal.

Geo. F. Steinbrenner, for the respondent.-The cause came

State of Indiana a. Woram.

up before the court, in the absence of a case, upon the whole evidence, and, in that shape, presents no ground for reversal. We were entitled to waive the want of a case, and, no one appearing to oppose, we had a right to an affirmance.

BY THE COURT.*-BOSWORTH, Ch. J. (orally).--In this case a judgment of affirmance was taken by default, which the appellant moves to set aside as irregular, on the ground that no case had been prepared or served, and that, therefore, the appeal was not ready for any decision. In support of this view he cites Rule 42 of the Supreme Court, allowing the respondent, in such case, to move for a dismissal of the appeal. This remedy is not, we think, exclusive. The appellant alone was in fault for not having prepared the papers, and we think that the respondent was entitled to disregard the fact, and, upon the appellant's default, to take a judgment of affirmance.

Motion denied, with $5 costs, and with liberty to renew on other grounds.

STATE OF INDIANA a. WORAM.

Supreme Court, First District; At Chambers, March, 1862.

MOTION TO SET ASIDE DISCONTINUANCE.-BANKRUPT DISCHARGE. -FRAUD.-LAPSE OF TIME.-LACHES.-DEATH OF WITNESSES.

On motion to set aside a discontinuance, entered by consent eighteen years before, after a plea of discharge in bankruptcy;-Held, that the motion must be denied. 1. In analogy to the Statute of Limitations, on account of the great lapse of time. 2. For want of due diligence in ascertaining the facts on which plaintiffs could rely to defeat the discharge. 3. Because nearly all the material witnesses for the defendant were dead since the discontinuance.

Motion to set aside a discontinuance.

* Present, BoswORTH, Ch. J., MONCRIEF, ROBERTSON, WHITE, BARBOUR, and MoNELL, JJ.