The execution was irregularly issued, and must be set aside. The ground assumed by the plaintiff is, that inasmuch as Miller had neglected to cause the title in fee simple, &c., to the two parcels of land described in the agreement between them of the 14th of April, 1843, to be vested in Sizer within nineteen months from that date, and to furnish evidence thereof to the satisfaction of Potter and Hall, that Sizer was at liberty at any time thereafter to collect the $1,000 remaining after the $7,000 had been paid, by an execution on the judgment against all of the defendants. The agreement contemplated that Goodell would assign to Sizer $1,000 of his judgment against Miller, being the eldest judgment against him, under which the premises described in the agreement should be sold; Sizer should bid the premises off at that sum, and if the premises were not redeemed and a good title in fee simple, free from incumbrances, vested in Sizer by that sale or by any other conveyance procured to him by Miller, evidence of which Miller should furnish to the satisfaction of Potter and *48Hall, then the judgment was, after the payment of the $7,000, ■ to be deemed satisfied; or if the premises should be redeemed, Sizer was to receive the money to be paid in that way, in satisfaction of the remainder of his judgment, in lieu of the title to the land, and in that case Miller was to be discharged from his obligation to perfect the title to the land in Sizer. It was no doubt understood between the parties, that fifteen months after the sale was the limit in which any person had the right to redeem, and to give ample time, as they supposed, to make a sale, they provided nineteen months in which a sale was to be made, time for redemption to expire, and Miller in the event that no redemption was made to cause the title to be vested, and to furnish such evidence as should satisfy Potter and Hall of that fact. But some mistake occurred, by which it became necessary that two sales made under the AGroodell judgment assigned to Sizer were set aside, at the instance and with the assent of both Miller and Sizer. A third and last sale took place on the 1st of August, 1844, at which Sizer was the purchaser at $1,000; and if he acquired a good title by that or by any other conveyance, or the premises should be redeemed, his judgment by the agreement would be satisfied, and if redeemed, Miller discharged from perfecting the title in him. The time for redemption expired on the 1st day of November, 1845 ; until then it could not be known whether it would be necessary for Miller to perfect the title in Sizer or not, as perhaps the sale might be redeemed. The acts of Sizer as well as the acts of Miller show clearly that the time limited to nineteen months by the agree: ment was extended. Miller was not in default in perfecting the title and furnishing the evidence of it, until the time for redemption had expired; which had not elapsed, within more than five months when the execution was Issued. Notice of this motion was given in June, which has stood over to this term, by the consent or arrangement between the parties.
Motion granted.