Small v. Wheaton — 2 Abb. Pr. 316

Majority

p. 316

SMALL a. WHEATON.

New York Common Pleas; General Term,

November, 1855.

Headnote

Execution. — Leave to Issue. — INSOLVENT DischaRge.

Where a judgment remained unpaid more than five years, and after its recovery the defendant obtained a discharge in insolvency which was afterwards adjudged void, — Held, that the plaintiff should have leave to issue execution on the judgment.

A plaintiff may have leave to issue execution on a judgment five years old and upwards, notwithstanding that he has brought an action upon it, and has recovered a.new judgment therein.

Appeal from an order of the special term, granting leave to plaintiff to issue execution on a judgment recovered in 1845.

In 1845 a judgment was recovered against "Wheaton by Williams, Dellicker, Baldwin, and Small, and was subsequently assigned to Small. In 1848 an insolvent discharge was granted to the defendant. Small afterwards brought an action upon the judgment in the Common Pleas, in which the discharge was held void on the trial, and this ruling sustained by the general term. The grounds for this opinion are fully shown in our report of the case {Ante, 175).

Small now moved for leave to issue execution upon the original judgment. ITis affidavit in support of the motion showed that since the recovery of the original judgment, the defendant had possessed real estate in New York city, upon which the judgment was a lien. The defendant, in his affidavits to oppose, set up the discharge in insolvency, and the pendency of the action upon the judgment, in which he alleged that judgment had been ordered for the plaintiff, but had not been entered or perfected. He also stated that before the commencement of the action upon the judgment, he had sold all the real estate which he had ever owned in New York city, for full value, in the belief on his part, and on the part of the purchasers, that the discharge was valid, and the judgment therefore no encumbrance upon the land.

p. 317

The order applied for was granted, and the defendant appealed.

Mr. Porter, for appellant.

I. The order permitting the issue of execution should not have been granted, because of the defendant’s discharge under the two thirds act. The judge erred in holding the discharge void.

II. The recovery in the action upon the judgment should be held, (for the purpose of this motion) an extinguishment of the judgment.

III. The property sought to be reached by the execution is real estate which has been purchased by the defendant since his discharge, and has been by him conveyed to, and is now held by bona fido purchasers for full value. Their property should not be taken to satisfy the debt of the defendant, unless the right to do so is entirely clear.

W. M. Evarts, for respondent,

I. Upon a judgment recovered the plaintiff has a right to execution until its satisfaction; but after the lapse of five years from the entry of judgment, the Code (§ 284) requires the leave of the Court, upon notice, upon affirmative proof “ that the judgment or some part thereof remains unsatisfied and due.”

II. The judgment is clearly “unsatisfied,” and it as clearly remains “ due,” unless the defendant’s insolvent discharge has extinguished the debt. But this Court has held at general term that the discharge is wholly void; therefore it presents no impediment to the issuing of execution.

III. It is well settled that a new judgment recovered upon a former one, being not a higher security, does not merge the debt or lien of the former judgment. The plaintiff may have two executions, though but one satisfaction.

IY. The rights of bona fide purchasers from defendant must be protected by themselves. The only mode in which the defendant can protect them, is by paying the judgment.

V. To deny the execution would operate as a practical suppression of the plaintiff’s only remedy upon a judgment which the Court has just held, is in full force and ought to be paid.

The defendant appeals from an order of

p. 318

the Court at special term, permitting an execution to issue in this action upon a judgment recovered more than five years since.

It is not denied that the whole of the amount of the judgment is still unpaid, and the only defence to it is the insolvent discharge of the defendant. This discharge has been held by this Court to be void for want of jurisdiction by the officer granting it.

That decision is conclusive so far as this Court has the matter before them, and that decision cannot be reviewed on this motion. The case is then presented, whether upon a judgment admitted to be unsatisfied, the plaintiff should have execution -when the only obstacle to the recovery is an insolvent discharge which has been held to be void. The mere statement of the proposition furnishes the answer. If the judgment is unpaid and there is no valid defence, the motion should be granted.

It is also objected that an execution on this judgment will reach property that has been sold. With that we have nothing to do. Any purchaser of such real estate had the means of knowing of the existence of the judgment, and with such knowledge, he took the property subject thereto. If the discharge was valid, he would hold it free from the judgment ; if not the plaintiff’s rights should not be sacrificed because the purchaser trusted to what has turned out to be no protection.

The order at special term should be affirmed.