There was no error in excluding the evidence to show want of jurisdiction in the county judge. The jurisdiction had been assented to by Sheehan, and by the execution of the assignment he vested in the receiver the assigned property. A stranger cannot deny the title of the assignee for any irregularity occurring in the proceedings prior to the assignment.
The executions issued in favor of Allen and Ludlum were found to be dormant by the referree. The evidence was sufficient to warrant such a conclusion. The judgments appear to have been taken as collateral security, and although executions were issued and levies made under them, yet directions were given that they should be delayed, and the sheriff was told that the plaintiff did not want to break up Sheehan in his business. As against other judgment creditors, such executions were dormant and a more vigilant creditor obtains priority.
If the evidence rested here the plaintiff would be entitled to recover, but it appears in the case that the sale was actually made under Houghton’s execution as well as the others. In *406fact, if the sale had not been insisted upon by the attorney for Houghton, it would not at that time have taken place.
Although the executions of Allen and Ludlum were dormant as to other creditors, they were not so as to the judgment debtor.
When Houghton’s attorney directed the sheriff to proceed and sell on his execution, and the sale was made under the three executions, there can be no doubt that the title of Sheehan to the property was ended, and that the sale to Allen was a valid one.
I am also inclined to the opinion that a sale even under a • dormant execution, may be a valid one, and where the execution of the subsequent creditor is at the time in the hands of the sheriff, he cannot deny the validity of the sale, but must resort to a motion to obtain the proceeds from the sheriff.
In Peck v. Tiffany, 2 Coms. 456, it is said, “ If the sheriff sold under an execution after it became dormant as against creditors, and after the execution of another creditor came to his hands, the sale would not have been void. “ The defendant in the execution could not have taken • advantage of its being dormant. “ It would then have been a mere contest between the creditors to determine upon which of the executions the avails of the sale should be applied.”
In this case the purchaser was the plaintiff in the execution, and even conceding that where the plaintiff in an execution which has become dormant, who has purchased in the property, acquires no title as against a judgment creditor (which I am not disposed to admit to its full extent), still in this case, inasmuch as the sale was made under the three executions of which the last was free from that objection, the purchaser’s title was undoubtedly valid.
But it is argued that though the sale was actually made under the executions of Allen and Ludlum, which are dormant, and of Houghton which was not, still that the defendant in his answer has only claimed title under the first two executions, and cannot avail himself of the sale under the Houghton execution, because not averred in the answer.
*407The defendant’s answer claims title to the property by virtue of a sale made by the sheriff under those executions without setting forth the judgment and execution of Houghton.
We are referred by the plaintiff’s counsel to a case in 2 Seld. 179 (Field v. The Mayor, etc.) as authority for this proposition, but that case appears to have been decided upon the other point named by the judge, viz. that the notice to the comptroller was sufficient. Besides, if it were otherwise, the defence in that case, which was not set up in the answer, was payment, of which the plaintiff could have no notice unless it was pleaded, and which, under all the rules of pleading, it was necessary Should be distinctly set out.
The rule, however, is more fully stated by Chief Justice Jewett in the Court of Appeals in Kelley v. Western, 2 Coms. p. 500, where he says, “ The defendant is required, besides answering the plaintiff’s case, to state to the court in his answer all the circumstances of which he intends to avail himself by way of defence; and he cannot avail himself of any matter in defence, which is not stated in his answer, even though it should appear in evidence. It appears to me, however, that there are two reasons why this rule should not apply to the present defence.
The plaintiff in whose behalf the supplementary proceedings were taken, directed this sale to be made, it was made under his execution as well as the others, and this fact is proven by the plaintiff on the cross examination of the deputy sheriff by his counsel. After the plaintiff has proven the defendant’s title to be good, and of course that the plaintiff has no title, it would be a mockery of justice to hold that the plaintiff had a right to recover, because the defendant had not sufficiently set out the defence in the answer. And the more so when the object of this action is to recover the property for the benefit of the plaintiff in the third execution under which such sale took place.
We may also consider this as coming within the provisions of the Code, §§ 170, 471. The defence is set up in the answer, but defectively. The sale by the sheriff is averred. *408The parties do not come to trial without knowledge on the part of the plaintiff that the sale by the sheriff was the foundation of the defendant’s title. Such title was defectively set out, and the rule as stated by Chief Justice Jewett in the last cited case may with propriety be applied here. “ When the pleading sets up a particular matter as the ground of defence and fails to present it as proved in some particular, so that there is a variance between the pleading and proof, the sections of the Code referred to apply. But when there is a total want of any allegation in the pleading of the subject matter as a ground of defence, the want of such allegation is not cured by the Code.”
The plaintiff is bound to show a title to the property he seeks to recover before he is entitled to a verdict, and if we conceded that the- defendant could not by way of defence give this matter in evidence, still if the plaintiff shows affirmatively that he has no title, there is no ground upon which he can recover.
We are of opinion that there was error on the part of the referee, and that the report must be set aside, costs to abide the event.
As the case has been fully placed before the referee, it would expedite the final decision of this case, if the plaintiff should appeal, to have the judgment entered by the court for the defendant, and if the parties so agree, the form can be settled by one of the judges with proper exceptions to the ruling. If not, the report is opened and referred back, either party to be at liberty to produce further testimony.
Judgment set aside; report referred back to the referees, with leave to either party to produce further testimony. Costs to abide the event.