Goetz v. Mott — 21 Abb. N. Cas. 246

Majority

p. 246

GOETZ v. MOTT.

N. Y. Supreme Court, First District, Chambers;

May, 1888.

Headnote

Judgment creditors; priority.] Two judgments, docketed against a defendant at different times, will both attach to subsequently acquired real property at the same moment, and neither will have priority over the other on account of the priority of docket.

Hearing upon exceptions to the report of a referee in surplus money proceedings.

The surplus moneys in question arose out of the sale of certain real estate under the foreclosure of a mortgage made by Maria Mott, who died December 28, 1886, intestate, leaving her surviving, as her heirs at law, Charles Mott and Henry H. Mott.

On June 14, 1886, Frederick T. Herder recovered a judgment in the supreme court of X. Y. county against Charles Mott for $8,920, which was docketed in the X. Y. county clerk’s office on the same day, and on February 27, 1886, Edgar M. Hermanee, recovered a judgment in the supreme court of Westchester county against- Charles-Mott for $1,190.68, a transcript of which was filed in the X. Y. county clerk’s office on September 21, 1886. The surplus moneys amounted to $1,336.30. Both Herder and. Hermanee were made defendants in the foreclosure actions.

The Referee, held that the judgment of Frederick T. Herder was a prior lien and should be first paid out the share

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of the surplus moneys belonging to Charles Mott, as one of the heirs at law of his mother, Maria Mott.

To this ruling the defendant Edgar M. Hermanee excepted.

James M. Hunt (Rudd & Hunt, attorneys), for defendant Hermance.

Alonzo C. Farnham, for defendant Herder.

F. L. W. Schaffner, for defendant Henry H. Mott.

Maria Mott died in December, 1886, intestate, leaving as her only heirs her two sons, Henry H. Mott and Charles Mott. The defendant, Hermanee, in February, 1886, recovered judgment against the said Charles Mott in the supreme court of this State in Westchester county,, a transcript of which judgment was filed in New York county in September, 1886. At the time of the recovery of such judgment Charles Mott had no interest in the lands which were subject to the mortgage on a foreclosure of which the-surplus involved in this proceeding has arisen, and no lien could attach thereon until his interest became vested by the death of his mother. That lien was an equitable one, as it seems to me, and under the case of Purdy v. Doyle (1 Paige, 558) the judgment creditors of Charles Mott should be paid upon the basis of equality.

In Moody v. Harper ( 25 Miss. 484 ) it appeared that the statute provided that “ in all cases the property of the defendants shall be bound and liable to any judgment that may be entered up from the time of entering such judgment.” In considering the effect of the provision just quoted, it was held that as the lien could not attach to property owned by anothei’, it could not take effect upon after-acquired real estate until the moment of its acquisition, and that upon taking, it did not relate back to the rendition of the judgment. Freeman, in Ms works on judgments (§ 368),after using the language above

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quoted,- states: “ From this view it follows, if two judgment liens have been docketed against a defendant, they will both attach to subsequently acquired property at the same moment, and neither will have priority over the other on account of his prior docket of rendition,” and adds, “ This construction seems to be of undisputed correctness, and to be adopted wherever the question has arisen,” citing* Michaels v. Boyd ( 1 Ind. 259 ), Davis v. Benton (2Sneed, 665), Relfe v. McComb ( 2 Head, 558 ). Section 1251 of the Code of Civil Procedure does not, in my opinion, give Herder any priority over Hermanee, because the lien of both judgments attached at the same instant of time. For these reasons it seems to me that each judgment is entitled to share in the portion of the surplus which became the property of Charles Mott upon the death of his mother.

Let an order be entered in accordance with these views.